THE LAW OF CONTRACT & TORT
CONTENTS
THE LAW OF CONTRACT & TORT ............................................................................ 1
CIVIL LIABILITY (CONTRIBUTION) ACT 1978 ...................................................................... 5
s1.
s2.
s3.
Entitlement to contribution .................................................................................................... 5
Assessment of contribution ..................................................................................................... 5
Proceedings against persons jointly liable for the same debt or damage .............................. 6
COMPENSATION ACT 2006 ........................................................................................... 7
1.
2.
3.
Deterrent effect of potential liability ....................................................................................... 7
Apologies, offers of treatment or other redress ..................................................................... 7
Mesothelioma: damages .......................................................................................................... 7
CONSUMER PROTECTION ACT 1987 ............................................................................... 10
PART 1 PRODUCT LIABILITY ........................................................................................... 10
1.
2.
3.
4.
5.
6.
7.
Purpose and construction of Part 1........................................................................................ 10
Liability for defective products ............................................................................................. 10
Meaning of “defect” .............................................................................................................. 11
Defences ................................................................................................................................ 12
Damage giving rise to liability ................................................................................................ 12
Application of certain enactments ......................................................................................... 13
Prohibition on exclusions from liability ................................................................................. 14
CONSUMER RIGHTS ACT 2015 ........................................................................................ 15
PART 1 CHAPTER 1 –CONSUMER CONTRACTS FOR GOODS, DIGITAL CONTENT AND
SERVICES .................................................................................................................. 15
1.
2.
Where part 1 applies ............................................................................................................ 15
Key definitions ....................................................................................................................... 15
PART 1 CHAPTER 2 – GOODS ......................................................................................... 15
9.
10.
11.
19.
20.
22.
23.
24.
31.
Goods to be of satisfactory quality ....................................................................................... 15
Goods to be fit for purpose ................................................................................................... 16
Goods to be as described ..................................................................................................... 16
Consumer’s rights to enforce terms........................................................................................ 17
Right to reject ........................................................................................................................ 17
Time limit for short-term right to reject .................................................................................. 17
Right to repair or replacement.............................................................................................. 18
Right to price reduction or final right to reject ....................................................................... 18
Liability that cannot be excluded .......................................................................................... 19
PART 1 CHAPTER 4- SERVICES .................................................................................... 20
49.
50.
51.
52.
54.
55.
56.
Service to be performed with reasonable care and skill ...................................................... 20
Information about the trader or service to be binding ......................................................... 20
Reasonable price to be paid for a service ............................................................................. 20
Service to be performed within a reasonable time .............................................................. 20
Consumer’s rights to enforce terms about services ................................................................ 21
Right to repeat performance ................................................................................................ 21
Right to price reduction ......................................................................................................... 21
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57.
Liability that cannot be excluded or restricted ...................................................................... 22
PART 2 UNFAIR TERMS ............................................................................................. 22
61.
62.
65.
67.
Contracts and notices covered by this part ............................................................................ 22
Requirement for contract terms and notices to be fair ......................................................... 22
Bar on exclusion or restriction of negligence liability............................................................. 23
Effect of an unfair term on the rest of a contract ................................................................... 23
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999 ........................................................ 24
1.
2.
Right of third party to enforce contractual term ................................................................... 24
Variation and rescission of contract ....................................................................................... 24
DEFAMATION ACT 2013 ............................................................................................. 25
1.
2.
3.
4.
Serious harm ......................................................................................................................... 25
Truth ...................................................................................................................................... 25
Honest opinion ...................................................................................................................... 25
Publication on matter of public interest ................................................................................. 26
FATAL ACCIDENTS ACT 1976 .......................................................................................... 27
1.
1A
2.
3.
4.
5.
Right of action for wrongful act causing death ...................................................................... 27
Bereavement ........................................................................................................................ 28
Persons entitled to bring the action ....................................................................................... 28
Assessment of damages......................................................................................................... 29
Assessment of damages: disregard of benefits .................................................................... 29
Contributory negligence ........................................................................................................ 29
LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT 1945 ................................................ 30
1.
4.
Apportionment of liability in case of contributory negligence.............................................. 30
Interpretation ........................................................................................................................ 30
LAW REFORM (FRUSTRATED CONTRACTS) ACT 1943...................................................... 31
1.
2.
Adjustment of rights and liabilities of parties to frustrated contracts ..................................... 31
Provision as to application of this act..................................................................................... 32
LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1934 ............................................... 33
1.
Effect of death on certain causes of action. ............................................................................ 33
LAW REFORM (PERSONAL INJURIES) ACT 1948 .............................................................. 34
2.
Measure of damages ............................................................................................................. 34
MISREPRESENTATION ACT 1967 .................................................................................... 35
1.
2.
3.
Removal of certain bars to rescission for innocent misrepresentation ................................. 35
Damages for misrepresentation ............................................................................................ 35
Avoidance of provision excluding liability for misrepresentation ......................................... 35
OCCUPIERS’ LIABILITY ACT 1957 .................................................................................... 36
LIABILITY IN TORT ..................................................................................................... 36
1.
2.
Preliminary ............................................................................................................................ 36
Extent of occupier’s ordinary duty ......................................................................................... 36
LIABILITY IN CONTRACT............................................................................................ 37
5.
Implied term in contracts ....................................................................................................... 37
OCCUPIERS’ LIABILITY ACT 1984 .................................................................................... 38
1. Duty of occupier to persons other than his visitors ................................................................ 38
1A.
Special considerations relating to access land ................................................................... 39
SALE OF GOODS ACT 1979 ............................................................................................. 40
PART II FORMATION OF THE CONTRACT ........................................................................ 40
8. Ascertainment of price .......................................................................................................... 40
11.
When condition to be treated as warranty ....................................................................... 40
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12.
13.
14.
15A.
Implied terms about title, etc. ............................................................................................. 40
Sale by description ............................................................................................................ 41
Implied terms about quality or fitness................................................................................ 41
Modification of remedies for breach of condition in non-consumer cases ....................... 42
PART IV PERFORMANCE OF THE CONTRACT................................................................... 43
34. Buyer’s right of examining the goods ..................................................................................... 43
35. Acceptance ............................................................................................................................ 43
35A. Right of partial rejection.................................................................................................... 43
PART VI ACTIONS FOR BREACH OF THE CONTRACT ........................................................ 44
49.
50.
51.
53.
Action for price ..................................................................................................................... 44
Damages for non-acceptance ................................................................................................ 44
Damages for non-delivery ..................................................................................................... 44
Remedy for breach of warranty ........................................................................................... 45
PART VII SUPPLEMENTARY ........................................................................................... 45
57.
61.
Auction sales ......................................................................................................................... 45
Interpretation ........................................................................................................................ 46
SUPPLY OF GOODS AND SERVICES ACT 1982 .................................................................. 47
PART I SUPPLY OF GOODS ............................................................................................. 47
2. Implied terms about title, etc.................................................................................................. 47
3. Implied terms where transfer is by description ..................................................................... 47
4. Implied terms about quality or fitness.................................................................................... 47
5A.
Modification of remedies for breach of statutory condition in non-consumer cases ......... 48
PART II SUPPLY OF SERVICES ......................................................................................... 48
13.
14.
15.
Implied term about care and skill ...................................................................................... 48
Implied term about time for performance ........................................................................ 48
Implied term about consideration ..................................................................................... 49
UNFAIR CONTRACT TERMS ACT 1977............................................................................. 50
PART I AMENDMENT OF LAW FOR ENGLAND AND WALES AND NORTHERN IRELAND .... 50
1.
2.
3.
Scope of Part I ....................................................................................................................... 50
Negligence liability ................................................................................................................ 50
Liability arising in contract ..................................................................................................... 51
LIABILITY ARISING FROM SALE OR SUPPLY OF GOODS ....................................... 51
6.
7.
Sale and hire-purchase .......................................................................................................... 51
Miscellaneous contracts under which goods pass.................................................................. 52
EXPLANATORY PROVISIONS .................................................................................... 52
11.
13.
The “reasonableness” test ..................................................................................................... 52
Varieties of exemption clause ................................................................................................ 53
SCHEDULE 1 .................................................................................................................. 53
SCOPE OF SECTIONS 2, 3 AND 7 ..................................................................................... 53
SCHEDULE 2 .................................................................................................................. 54
“GUIDELINES” FOR APPLICATION OF REASONABLENESS TEST ........................................ 54
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4
The Law of Contract & Tort
CIVIL LIABILITY (CONTRIBUTION) ACT 1978
1. Entitlement to contribution
(1)
Subject to the following provisions of this section, any person liable in respect of any
damage suffered by another person may recover contribution from any other person
liable in respect of the same damage (whether jointly with him or otherwise).
(2)
A person shall be entitled to recover contribution by virtue of subsection (1) above
notwithstanding that he has ceased to be liable in respect of the damage in question
since the time when the damage occurred, provided that he was so liable immediately
before he made or was ordered or agreed to make the payment in respect of which the
contribution is sought.
(3)
A person shall be liable to make contribution by virtue of subsection (1) above notwithstanding
that he has ceased to be liable in respect of the damage in question since the time
when the damage occurred, unless he ceased to be liable by virtue of the expiry of a
period of limitation or prescription which extinguished the right on which the claim
against him in respect of the damage was based.
(4)
A person who has made or agreed to make any payment in bona fide settlement or
compromise of any claim made against him in respect of any damage (including a
payment into court which has been accepted) shall be entitled to recover contribution
in accordance with this section without regard to whether or not he himself is or ever
was liable in respect of the damage, provided, however, that he would have been liable
assuming that the factual basis of the claim against him could be established.
(5)
A judgment given in any action brought in any part of the United Kingdom by or on behalf
of the person who suffered the damage in question against any person from whom
contribution is sought under this section shall be conclusive in the proceedings for
contribution as to any issue determined by that judgment in favour of the person from
whom the contribution is sought.
(6)
References in this section to a person’s liability in respect of any damage are
references to any such liability which has been or could be established in an action
brought against him in England and Wales by or on behalf of the person who suffered
the damage; but it is immaterial whether any issue arising in any such action was or
would be determined (in accordance with the rules of private international law) by
reference to the law of a country outside England and Wales.
2. Assessment of contribution
(1)
Subject to subsection (3) below, in any proceedings for contribution under section 1
above the amount of the contribution recoverable from any person shall be such as may be
found by the court to be just and equitable having regard to the extent of that person’s
responsibility for the damage in question.
(2)
Subject to subsection (3) below, the court shall have power in any such proceedings
to exempt any person from liability to make contribution or to direct that the
contribution to be recovered from any person shall amount to a complete idemnity.
(3)
Where the amount of the damages which have or might have been awarded in respect of
the damage in question in any action brought in England and Wales by or on behalf of the
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5
person who suffered it against the person from whom the contribution is sought was or
would have been subject to –
(a)
any limit imposed by or under any enactment or by any agreement made before the damage
occurred;
(b)
any reduction by virtue of section 1 of the Law Reform (Contributory negligence) Act 1945
or section 5 of the fatal Accidents Act 1976; or
(c)
any corresponding limit or reduction under the law of a country outside England and
Wales;
the person from whom the contribution is sought shall not by virtue of any contribution
awarded under section 1 above be required to pay in respect of the damage a greater amount than
the amount of those damages as so limited or reduced.
3. Proceedings against persons jointly liable for the same debt or damage
Judgment recovered against any person liable in respect of any debt or damage shall not be a bar
to an action, or to the continuance of an action, against any other person who is (apart from any
such bar) jointly liable with him in respect of the same debt or damage.
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COMPENSATION ACT 2006
1. Deterrent effect of potential liability
A court considering a claim in negligence or breach of statutory duty may, in determining
whether the defendant should have taken particular steps to meet a standard of care (whether by
taking precautions against a risk or otherwise), have regard to whether a requirement to take those
steps might(a)
prevent a desirable activity from being undertaken at all, to a particular extent or in
a particular way, or
(b)
discourage persons from undertaking functions in connection with a desirable
activity.
2. Apologies, offers of treatment or other redress
An apology, an offer of treatment or other redress, shall not of itself amount to an admission of
negligence or breach of statutory duty.
3. Mesothelioma: damages
(1)
(2)
This section applies where(a)
a person (“the responsible person”) has negligently or in breach of statutory duty caused
or permitted another person (“the victim”) to be exposed to asbestos,
(b)
the victim has contracted mesothelioma as a result of exposure to asbestos,
(c)
because of the nature of mesothelioma and the state of medical science, it is not possible
to determine with certainty whether it was the exposure mentioned in paragraph (a) or
another exposure which caused the victim to become ill, and
(d)
the responsible person is liable in tort, by virtue of the exposure mentioned in
paragraph (a), in connection with damage caused to the victim by the disease (whether
by reason of having materially increased a risk or for any other reason).
The responsible person shall be liable(a)
(b)
(3)
in respect of the whole of the damage caused to the victim by the disease (irrespective of
whether the victim was also exposed to asbestos(i)
other than by the responsible person, whether or not in circumstances in which
another person has liability in tort, or
(ii)
by the responsible person in circumstances in which he has no liability in tort), and
jointly and severally with any other responsible person.
Subsection (2) does not prevent(a)
one responsible person from claiming a contribution from another, or
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(b)
(4)
a finding of contributory negligence.
In determining the extent of contributions of different responsible persons in accordance with
subsection (3)(a), a court shall have regard to the relative lengths of the periods of exposure
for which each was responsible; but this subsection shall not apply(a)
if or to the extent that responsible persons agree to apportion responsibility amongst
themselves on some other basis, or
(b)
if or to the extent that the court thinks that another basis for determining
contributions is more appropriate in the circumstances of a particular case.
(5)
In subsection (1) the reference to causing or permitting a person to be exposed to asbestos
includes a reference to failing to protect a person from exposure to asbestos.
(6)
In the application of this section to Scotland-
(7)
(8)
8
(a)
a reference to tort shall be taken as a reference to delict, and
(b)
a reference to a court shall be taken to include a reference to a jury.
The Treasury may make regulations about the provision of compensation to a responsible person
where(a)
he claims, or would claim, a contribution from another responsible person in
accordance with subsection (3)(a), but
(b)
he is unable or likely to be unable to obtain the contribution, because an insurer of the
other responsible person is unable or likely to be unable to satisfy the claim for a
contribution.
The regulations may, in particular(a)
replicate or apply (with or without modification) a provision of the financial services
Compensation scheme;
(b)
replicate or apply (with or without modification) a transitional compensation provision;
(c)
provide for a specified person to assess and pay compensation;
(d)
provide for expenses incurred (including the payment of compensation) to be met out of
levies collected in accordance with section 213(3)(b) of the financial services and Markets
Act 2000 (c. 8) (the financial services Compensation scheme);
(e)
modify the effect of a transitional compensation provision;
(f)
enable the financial services Authority to amend the financial services Compensation
scheme;
(g)
modify the financial services and Markets Act 2000 in its application to an
amendment pursuant to paragraph (f);
(h)
make, or require the making of, provision for the making of a claim by a responsible person
for compensation whether or not he has already satisfied claims in tort against him;
The Law of Contract & Tort
(i)
(9)
make, or require the making of, provision which has effect in relation to claims for
contributions made on or after the date on which this Act is passed.
Provision made by virtue of subsection (8)(a) shall cease to have effect when the financial
services Compensation scheme is amended by the financial services Authority by virtue of
subsection (8)(f).
(10) In subsections (7) and (8)(a)
a reference to a responsible person includes a reference to an insurer of a responsible person,
and
(b)
“transitional compensation provision” means a provision of an enactment which is
made under the financial services and Markets Act 2000 and-
(i)
preserves the effect of the Policyholders Protection Act 1975 (c. 75), or
(ii)
applies the financial services Compensation scheme in relation to matters arising
before its establishment.
(11) Regulations under subsection (7)(a)
may include consequential or incidental provision,
(b)
may make provision which has effect generally or only in relation to specified cases or
circumstances,
(c)
may make different provision for different cases or circumstances,
(d)
shall be made by statutory instrument, and
(e)
may not be made unless a draft has been laid before and approved by resolution of each
House of Parliament.
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CONSUMER PROTECTION ACT 1987
PART 1 PRODUCT LIABILITY
1. Purpose and construction of Part 1
(1)
This Part shall have effect for the purpose of making such provision as is necessary in order to
comply with the product liability Directive and shall be construed accordingly.
(2)
In this Part, except in so far as the context otherwise requires “agricultural produce” means any produce of the soil, of stockfarming or of fisheries;
“dependant” and “relative” have the same meaning as they have in, respectively, the fatal
Accidents Act 1976 and the Damages (Scotland) Act 1976;
“producer”, in relation to a product, means (a)
the person who manufactured it;
(b)
in the case of a substance which has not been manufactured but has been won or
abstracted, the person who won or abstracted it;
(c)
in the case of a product which has not been manufactured, won or abstracted but essential
characteristics of which are attributable to an industrial or other process having been carried
out (for example, in relation to agricultural produce), the person who carried out that
process;
“product” means any goods or electricity and (subject to subsection (3) below) includes a
product which is comprised in another product, whether by virtue of being a component part
or raw material or otherwise; and
“the product liability Directive” means the Directive of the Council of the European
Communities, dated 25th July 1985, (no 85/374/EEC) on the approximation of the laws,
regulations and administrative provisions of the member states concerning liability for
defective products.
(3)
For the purposes of this Part a person who supplies any product in which products
are comprised, whether by virtue of being component parts or raw materials or otherwise, shall
not be treated by reason only of his supply of that product as supplying any of the
products so comprised.
2. Liability for defective products
(1)
Subject to the following provisions of this Part, where any damage is caused wholly or partly by a
defect in a product, every person to whom subsection (2) below applies shall be liable for the
damage.
(2)
This subsection applies to -
10
(a)
the producer of the product;
(b)
any person who, by putting his name on the product or using a trade mark or
The Law of Contract & Tort
other distinguishing mark in relation to the product, has held himself out to be the
producer of the product;
(c)
(3)
any person who has imported the product into the United Kingdom in order, in the course
of any business of his, to supply it to another.
Subject as aforesaid, where any damage is caused wholly or partly by a defect in a product, any
person who supplied the product (whether to the person who suffered the damage, to the
producer of any product in which the product in question is comprised or to any other person)
shall be liable for the damage if (a)
the person who suffered the damage requests the supplier to identify one or more of the
persons (whether still in existence or not) to whom subsection (2) above applies in
relation to the product;
(b)
that request is made within a reasonable period after the damage occurs and at a time
when it is not reasonably practicable for the person making the request to identify all
those persons; and
(c)
the supplier fails, within a reasonable period after receiving the request, either to comply
with the request or to identify the person who supplied the product to him.
(4)
Neither subsection (2) nor subsection (3) above shall apply to a person in respect of any defect
in any game or agricultural produce if the only supply of the game or produce by that person to
another was at a time when it had not undergone an industrial process.
(5)
Where two or more persons are liable by virtue of this Part for the same damage, their liability shall be
joint and several.
(6)
This section shall be without prejudice to any liability arising otherwise than by virtue of this
Part.
3. Meaning of “defect”
(1)
Subject to the following provisions of this section, there is a defect in a product for the
purposes of this Part if the safety of the product is not such as persons generally are entitled to
expect; and for those purposes “safety”, in relation to a product, shall include safety with respect
to products comprised in that product and safety in the context of risks of damage to property,
as well as in the context of risks of death or personal injury.
(2)
In determining for the purposes of subsection (1) above what persons generally are entitled to
expect in relation to a product all the circumstances shall be taken into account, including(a)
the manner in which, and purposes for which, the product has been marketed, its get-up,
the use of any mark in relation to the product and any instructions for, or warnings with
respect to, doing or refraining from doing anything with or in relation to the product;
(b)
what might reasonably be expected to be done with or in relation to the product; and
(c)
the time when the product was supplied by its producer to another;
and nothing in this section shall require a defect to be inferred from the fact alone that the safety
of a product which is supplied after that time is greater than the safety of the product in question.
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4. Defences
(1)
(2)
In any civil proceedings by virtue of this Part against any person (“the person proceeded
against”) in respect of a defect in a product it shall be a defence for him to show (a)
that the defect is attributable to compliance with any requirement imposed by or under
any enactment or with any EU obligation; or
(b)
that the person proceeded against did not at any time supply the product to another; or
(c)
that the following conditions are satisfied, that is to say -
(i)
that the only supply of the product to another by the person proceeded against
was otherwise than in the course of a business of that person’s; and
(ii)
that section 2(2) above does not apply to that person or applies to him by virtue only
of things done otherwise than with a view to profit; or
(a)
that the defect did not exist in the product at the relevant time; or
(b)
that the state of scientific and technical knowledge at the relevant time was not such that
a producer of products of the same description as the product in question might be
expected to have discovered the defect if it had existed in his products while they were
under his control; or
(c)
that the defect (i)
constituted a defect in a product (“the subsequent product”) in which the product
in question had been comprised; and
(ii)
was wholly attributable to the design of the subsequent product or to compliance
by the producer of the product in question with instructions given by the producer
of the subsequent product.
In this section “the relevant time”, in relation to electricity, means the time at which it was
generated, being a time before it was transmitted or distributed, and in relation to any other
product, means (a)
if the person proceeded against is a person to whom subsection (2) of section 2 above
applies in relation to the product, the time when he supplied the product to another;
(b)
if that subsection does not apply to that person in relation to the product, the time when
the product was last supplied by a person to whom that subsection does apply in
relation to the product.
5. Damage giving rise to liability
(1)
Subject to the following provisions of this section, in this Part “damage” means death or
personal injury or any loss of or damage to any property (including land).
(2)
A person shall not be liable under section 2 above in respect of any defect in a product for the
loss of or any damage to the product itself or for the loss of or any damage to the whole or any
part of any product which has been supplied with the product in question comprised in it.
(3)
A person shall not be liable under section 2 above for any loss of or damage to any property which,
12
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at the time it is lost or damaged, is not (a)
of a description of property ordinarily intended for private use, occupation or
consumption; and
(b)
intended by the person suffering the loss or damage mainly for his own private use,
occupation or consumption.
(4)
No damages shall be awarded to any person by virtue of this Part in respect of any loss of or
damage to any property if the amount which would fall to be so awarded to that person, apart
from this subsection and any liability for interest, does not exceed £275.
(5)
In determining for the purposes of this Part who has suffered any loss of or damage
to property and when any such loss or damage occurred, the loss or damage shall be
regarded as having occurred at the earliest time at which a person with an interest in
the property had knowledge of the material facts about the loss or damage.
(6)
For the purposes of subsection (5) above the material facts about any loss of or damage to any
property are such facts about the loss or damage as would lead a reasonable person with an
interest in the property to consider the loss or damage sufficiently serious to justify his instituting
proceedings for damages against a defendant who did not dispute liability and was able to satisfy a
judgment.
(7)
For the purposes of subsection (5) above a person’s knowledge includes knowledge which he
might reasonably have been expected to acquire (a)
from facts observable or ascertainable by him; or
(b)
from facts ascertainable by him with the help of appropriate expert advice which it is
reasonable for him to seek;
but a person shall not be taken by virtue of this subsection to have knowledge of a fact
ascertainable by him only with the help of expert advice unless he has failed to take all
reasonable steps to obtain (and, where appropriate, to act on) that advice.
(8)
Subsections (5) to (7) above shall not extend to Scotland.
6. Application of certain enactments
(1)
Any damage for which a person is liable under section 2 above shall be deemed to have been
caused (a)
for the purposes of the fatal Accidents Act 1976, by that person’s wrongful act, neglect
or default;
(b)-(d)
(2)
(apply to Scotland only.)
Where (a)
a person’s death is caused wholly or partly by a defect in a product, or a person dies after
suffering damage which has been so caused;
(b)
a request such as mentioned in paragraph (a) of subsection (3) of section 2 above is made
to a supplier of the product by that person’s personal representatives or, in the case of a
person whose death is caused wholly or partly by the defect, by any dependant or relative
of that person; and
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13
(c)
the conditions specified in paragraphs (b) and (c) of that subsection are satisfied in relation
to that request,
this Part shall have effect for the purposes of the Law Reform (Miscellaneous Provisions) Act
1934, the fatal Accidents Act 1976 and the Damages (Scotland) Act 1976 as if liability of the
supplier to that person under that subsection did not depend on that person having requested
the supplier to identify certain persons or on the said conditions having been satisfied in
relation to a request made by that person.
(3)
Section 1 of the Congenital Disabilities (Civil Liability) Act 1976 shall have effect for the
purposes of this Part as if (a)
a person were answerable to a child in respect of an occurrence caused wholly or partly
by a defect in a product if he is or has been liable under section 2 above in respect of any
effect of the occurrence on a parent of the child, or would be so liable if the occurrence
caused a parent of the child to suffer damage;
(b)
the provisions of this Part relating to liability under section 2 above applied in relation
to liability by virtue of paragraph (a) above under the said section 1; and
(c)
subsection (6) of the said section 1 (exclusion of liability) were omitted.
(4)
Where any damage is caused partly by a defect in a product and partly by the fault of the person
suffering the damage, the Law Reform (Contributory negligence) Act 1945 and section 5 of the fatal
Accidents Act 1976 (contributory negligence) shall have effect as if the defect were the fault of
every person liable by virtue of this Part for the damage caused by the defect.
(5)
In subsection (4) above “fault” has the same meaning as in the said Act of 1945.
(6)
Schedule 1 to this Act shall have effect for the purpose of amending the Limitation Act 1980 and
the Prescription and Limitation (Scotland) Act 1973 in their application in relation to the bringing
of actions by virtue of this Part.
(7)
It is hereby declared that liability by virtue of this Part is to be treated as liability in tort for the
purposes of any enactment conferring jurisdiction on any court with respect to any matter.
(8)
Nothing in this Part shall prejudice the operation of section 12 of the nuclear Installations Act
1965 (rights to compensation for certain breaches of duties confined to rights under that Act).
7. Prohibition on exclusions from liability
The liability of a person by virtue of this Part to a person who has suffered damage caused wholly
or partly by a defect in a product, or to a dependant or relative of such a person, shall not be
limited or excluded by any contract term, by any notice or by any other provision.
14
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CONSUMER RIGHTS ACT 2015
PART 1 CHAPTER 1 –CONSUMER CONTRACTS FOR GOODS, DIGITAL CONTENT AND
SERVICES
1. Where part 1 applies
(1)
This Part applies where there is an agreement between a trader and a consumer for
the trader to supply goods, digital content or services, if the agreement is a contract.
(2)
It applies whether the contract is written or oral or implied from the parties’ conduct, or more
than one of these combined.
(3)
Any of Chapters 2, 3 and 4 may apply to a contract –
(a)
if it is a contract for the trader to supply goods, see Chapter 2;
.
(c)
.
.
if it is a contract for the trader to supply a service, see Chapter 4 (also subsection (6)).
(4)
In each case the Chapter applies even if the contract also covers something covered by
another Chapter (a mixed contract).
(5)
Two or all three of those Chapters may apply to a mixed contract.
.
.
.
2. Key definitions
.
.
.
(2)
“Trader” means a person acting for purposes relating to that person’s trade, business, craft or
profession, whether acting personally or through another person acting in the trader’s name or
on the trader’s behalf.
(3)
“Consumer” means an individual acting for purposes that are wholly or mainly outside that
individual’s trade, business, craft or profession.
PART 1 CHAPTER 2 – GOODS
.
.
.
9. Goods to be of satisfactory quality
(1)
Every contract to supply goods is to be treated as including a term that the quality of goods is
satisfactory.
(2)
The quality of goods is satisfactory if they meet the standard that a reasonable person would
consider satisfactory, taking account of –
(a)
any description of the goods,
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15
(3)
(4)
(b)
the price or other consideration for the goods (if relevant),and
(c)
all other relevant circumstances…
The quality of goods includes their state and condition; and the following aspects (among
others) are in appropriate cases aspects of the quality of goods –
(a)
fitness for all the purposes for which goods of that kind are usually supplied;
(b)
appearance and finish;
(c)
freedom from minor defects;
(d)
safety;
(e)
durability.
The term mentioned in subsection 1 does not cover anything which makes the quality of the goods
unsatisfactory(a)
which is specifically drawn to the consumer’s attention before the contract is made,
(b)
where the consumer examines the goods before the contract is made , which that
examination ought to reveal, or
.
.
.
10. Goods to be fit for purpose
(1)
Subsection 3 applies to a contract to supply goods if before the contract is made the consumer makes
known to the trader (expressly or by implication) any particular purpose for which the consumer
is contracting for the goods.
.
.
.
(3)
The contract is to be treated as including a term that the goods are reasonably fit for that
purpose, whether or not that is a purpose for which goods of that kind are usually supplied.
(4)
Subsection (3) does not apply if the circumstances show that the consumer does not rely, or it
is unreasonable for the consumer to rely, on the skill or judgment of the trader.
11. Goods to be as described
(1)
Every contract to supply goods by description is to be treated as including a term that the goods
will match the description.
(3)
A supply of goods is not prevented from being a supply by description just because –
16
(a)
the goods are exposed for supply, and
(b)
they are selected by the consumer.
.
.
.
The Law of Contract & Tort
19.
Consumer’s rights to enforce terms
(1)
In this section and sections 22 to 24 references to goods conforming to a contract
are references to –
(a)
the goods conforming to the terms described in sections 9, 10, 11, 13 and 14,
.
(3)
.
.
If the goods do not conform to the contract because of a breach of any of the terms described in
sections 9, 10, 11… the consumer’s rights (and the provisions about them and when they are
available) are –
(a)
the short-term right to reject (sections 20 and 22);
(b)
the right to repair or replacement (section 23); and
(c)
the right to a price reduction or the final right to reject (sections 20 and 24).
.
.
.
20. Right to reject
(1)
The short-term right is subject to section 22.
(2)
The final right to reject is subject to section 24.
.
(5)
.
The right is exercised if the consumer indicates to the trader that the consumer is rejecting the
goods and treating the contract as at an end.
.
(7)
.
.
.
from time to time when the right is exercised –
(a)
the trader has a duty to give the consumer a refund ...
(b)
the consumer has a duty to make the goods available for collection by the trader or ...
return them as agreed.
22. Time limit for short-term right to reject
(1)
A consumer who has the short-term right to reject loses it if the time limit for exercising
it passes without the consumer exercising it, unless the trader and the consumer agree
that it may by exercised later.
(2)
An agreement under which the short-term right to reject would be lost before the time limit passes
is not binding on the consumer.
(3)
The time limit for exercising the short-term right to reject (unless subsection (4) applies)
is the end of 30 days beginning with the first day after these have all happened . . .
(a)
ownership or possession of the goods has been transferred to the consumer,
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17
(4)
(b)
the goods have been delivered, and
(c)
where the contract required the trader to install the goods or to take other action to
enable the consumer to use them, the trader has notified the consumer that the action has
been taken.
If any of the goods are of a kind that can reasonably be expected to perish after a shorter period,
the time limit for exercising the short-term right to reject in relation to those goods is the end of
that shorter period (but without affecting the time limit in relation to goods that are not of that
kind).
.
(6)
.
.
If the consumer requests or agrees to the repair or replacement of goods, the period mentioned in
subsection (3) or (4) stops running for the length of the waiting period.
23. Right to repair or replacement
(1)
This section applies if the consumer has the right to repair or replacement (see section 19(3) and
(4)).
(2)
If the consumer requires the trader to repair or replace the goods, the trader must –
(3)
(4)
(a)
do so within a reasonable time and without significant inconvenience to the
consumer, and
(b)
bear any necessary cost incurred in doing to (including in particular the cost of any labour,
materials or postage).
The consumer cannot require the trader to repair or replace the goods if that remedy (the repair
or the replacement) –
(a)
is impossible, or
(b)
is disproportionate compared to the other of those remedies.
Either of those remedies is disproportionate compared to the other if it imposes cost on the
trader which, compared to those imposed by the other, are unreasonable, taking into account
–
(a)
the value which the goods would have if they conformed to the contract,
(b)
the significance of the lack of conformity, and
(c)
whether the other remedy could be effected without significant inconvenience to the
consumer.
.
. .
24. Right to price reduction or final right to reject
(1)
The right to a price reduction is the right –
(a)
18
to require the trader to reduce by an appropriate amount the price the consumer is
The Law of Contract & Tort
required to pay under the contract, or anything else the consumer is required to transfer
under the contract, and
(b)
to receive a refund from the trader for anything already paid or otherwise transferred by the
consumer above the reduced amount.
.
(5)
. .
A consumer who has the right to a price reduction and the final right to reject may
only exercise one (not both), and may only do so in one of these situations –
(a)
after one repair or one replacement, the goods do not conform to the contract;
(b)
because of section 23(2) the consumer can require neither repair not replacement of the
goods; or
(c)
the consumer has required the trader to repair or replace the goods, but the trader is in
breach of the requirement of section 23(2)(a) to do so within a reasonable time and without
significant inconvenience to the consumer.
.
.
.
31.
Liability that cannot be excluded
(1)
A term of a contract to supply goods is not binding on the consumer to the extent that it would
exclude or restrict the trader’s liability arising under any of these provisions—
(a)
section 9 (goods to be of satisfactory quality);
(b)
section 10 (goods to be fit for particular purpose);
(c)
section 11 (goods to be as described);
.
(2)
(3)
. .
That also means that a term of a contract to supply goods is not binding on the consumer to the
extent that it would –
(a)
exclude or restrict a right or remedy in respect of a liability under a provision listed in
subsection (1),
(b)
make such a right or remedy or its enforcement subject to a restrictive or onerous
condition,
(c)
allow a trader to put a person at a disadvantage as a result of pursuing such a right or
remedy, or
(d)
exclude or restrict rules of evidence or procedure.
The reference in subsection (1) to excluding or restricting a liability also includes preventing an
obligation or duty arising or limiting its extent.
.
. .
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19
PART 1 CHAPTER 4- SERVICES
49.
Service to be performed with reasonable care and skill
(1)
Every contract to supply a service is to be treated as including a term that the trader must perform
the service with reasonable care and skill.
(2)
See section 54 for a consumer’s rights if the trader is in breach of a term that this section requires
to be treated as included in a contract.
50.
Information about the trader or service to be binding
(1)
Every contract to supply a service is to be treated as including as a term of the contract anything
that is said or written to the consumer, by or on behalf of the trader, about the trader or the
service, if –
(a)
it is taken into account by the consumer when deciding to enter into the contract, or
(b)
it is taken into account by the consumer when making any decision about the service after
entering into the contract.
.
. .
51.
Reasonable price to be paid for a service
(1)
This section applies to a contract to supply a service, if—
(a)
the consumer has not paid a price or other consideration for the service,
(b)
the contract does not expressly fix a price or other consideration, and does not say how it
is to be fixed, and
(c)
anything that is to be treated under section 50 as included in the contract does not fix a price
or other consideration either.
(2)
In that case the contract is to be treated as including a term that the consumer must pay a
reasonable price for the service, and no more.
(3)
What is a reasonable price is a question of fact.
52.
Service to be performed within a reasonable time
(1)
This section applies to a contract to supply a service, if—
(a)
the contract does not expressly fix the time for the service to be performed, and does
not say how it is to be fixed, and
(b)
information that is to be treated under section 50 as included in the contract does not fix
the time either.
(2)
In that case the contract is to be treated as including a term that the trader must perform the
service within a reasonable time.
20
The Law of Contract & Tort
(3)
What is a reasonable time is a question of fact.
54.
Consumer’s rights to enforce terms about services
(1)
The consumer’s rights under this section and sections 55 and 56 do not affect any rights that the
contract provides for, if those are not inconsistent.
.
(3)
. .
If the service does not conform to the contract, the consumer’s rights (and the provisions about
them and when they are available) are –
(a)
the right to require repeat performance (see section 55);
(b)
the right to a price reduction (see section 56).
.
. .
55.
Right to repeat performance
(1)
The right to require repeat performance is a right to require the trader to perform the service again,
to the extent necessary to complete its performance in conformity with the contract.
(2)
If the consumer requires such repeat performance, the trader –
(3)
(a)
must provide it within a reasonable time and without significant inconvenience to the
consumer; and
(b)
must bear any necessary costs incurred in doing so (including in particular the cost
of any labour or materials).
The consumer cannot require repeat performance if completing performance of the service in
conformity with the contract is impossible.
.
. .
56.
Right to price reduction
(1)
The right to a price reduction is the right to require the trader to reduce the price to the
consumer by an appropriate amount (including the right to receive a refund for anything already
paid above the reduced amount).
.
(3)
. .
A consumer who has that right and the right to require repeat performance is only entitled to a
price reduction in one of these situations –
(a)
because of section 55(3) the consumer cannot require repeat performance; or
(b)
the consumer had required repeat performance, but the trader is in breach of the requirement
of section 55(2)(a) to do it within a reasonable time and without significant inconvenience
to the consumer.
.
. .
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21
57.
Liability that cannot be excluded or restricted
(1)
A term of a contract to supply services is not binding on the consumer to the extent that it would
exclude the trader’s liability arising under section 49 (service to be performed with reasonable
care and skill).
.
. .
(3)
A term of a contract to supply services is not binding on the consumer to the extent that it would
restrict the trader’s liability arising under any of sections 49 and 50 and, where they apply, sections
51 and 52 (reasonable price and reasonable time), if it would prevent the consumer in an
appropriate case from recovering the price paid or the value of any other consideration. (If it
would not prevent the consumer from doing so, Part 2 (unfair terms) may apply.)
(4)
That also means that a term of a contract to supply services is not binding on the consumer to the
extent that it would —
(5)
(a)
exclude or restrict a right or remedy in respect of a liability under any of sections 49 to 52,
(b)
make such a right or remedy or its enforcement subject to a restrictive or onerous
condition,
(c)
allow a trader to put a person at a disadvantage as a result of pursuing such a right or
remedy, or
(d)
exclude or restrict rules of evidence or procedure.
The references in subsections (1) to (3) to excluding or restricting a liability also includes
preventing an obligation or duty arising or limiting its extent.
.
. .
PART 2 UNFAIR TERMS
61.
Contracts and notices covered by this part
(1)
This Part applies to a contract between a trader and a consumer.
.
. .
62.
Requirement for contract terms and notices to be fair
(1)
An unfair term of a consumer contract is not binding on the consumer.
(2)
An unfair consumer notice is not binding on the consumer.
(3)
This does not prevent the consumer from relying on the term or notice if the consumer
chooses to do so.
(4)
A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the
parties’ rights and obligations under the contract to the detriment of the consumer.
(5)
Whether a term is fair is to be determined –
22
The Law of Contract & Tort
(a)
taking into account the nature of the subject matter of the contract, and
(b)
by reference to all the circumstances existing when the term was agreed and to all of the
other terms of the contract or of any other contract on which it depends.
(6)
A notice is unfair if, contrary to the requirements of good faith, it causes a significant imbalance in the
parties’ rights and obligations to the detriment of the consumer.
(7)
Whether a notice is fair is to be determined –
(8)
(a)
taking into account the nature of the subject matter of the notice, and
(b)
by reference to all the circumstances existing when rights or obligations to which it relates
arose and to the terms of any contract on which it depends.
This section does not affect the operation of –
(a)
section 31 (exclusion of liability: goods contracts),
.
.
.
(c)
section 57 (exclusion of liability: services contracts), or
(d)
section 65 (exclusion of negligence liability).
65.
Bar on exclusion or restriction of negligence liability
(1)
A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability
for death or personal injury resulting from negligence.
(2)
Where a term of a consumer contract, or a consumer notice, purports to exclude or restrict a
trader’s liability for negligence, a person is not to be taken to have voluntarily accepted any risk
merely because the person agreed to or knew about the term or notice.
(3)
In this section “personal injury” includes any disease and any impairment of physical
or mental condition.
(4)
In this section “negligence” means the breach of –
(a)
any obligation to take reasonable care or exercise reasonable skill in the performance of a
contract where the obligation arises from an express or implied term of the contract,
(b)
a common law duty to take reasonable care or exercise reasonable skill,
(c)
the common duty of care imposed by the Occupiers’ Liability Act 1957 or the
Occupiers’ Liability Act (Northern Ireland) 1957.
.
67.
. .
Effect of an unfair term on the rest of a contract
Where a term of a consumer contract is not binding on the consumer as a result of this Part, the
contract continues, so far as practicable, to have effect in every other respect.
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23
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
1.
Right of third party to enforce contractual term
(1)
Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in
his own right enforce a term of the contract if—
(a)
the contract expressly provides that he may, or
(b)
subject to subsection (2), the term purports to confer a benefit on him.
(2)
Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the
parties did not intend the term to be enforceable by the third party.
(3)
The third party must be expressly identified in the contract by name, as a member of a class or as
answering a particular description but need not be in existence when the contract is entered
into.
(4)
This section does not confer a right on a third party to enforce a term of a contract otherwise than
subject to and in accordance with any other relevant terms of the contract.
(5)
For the purpose of exercising his right to enforce a term of the contract, there shall be
available to the third party any remedy that would have been available to him in an action for breach
of contract if he had been a party to the contract (and the rules relating to damages, injunctions,
specific performance and other relief shall apply accordingly).
(6)
Where a term of a contract excludes or limits liability in relation to any matter references in this Act
to the third party enforcing the term shall be construed as references to his availing himself of the
exclusion or limitation.
(7)
In this Act, in relation to a term of a contract which is enforceable by a third party—
“the promisor” means the party to the contract against whom the term is enforceable by the third
party, and
“the promisee” means the party to the contract by whom the term is enforceable against the
promisor.
2.
Variation and rescission of contract
(1)
subject to the provisions of this section, where a third party has a right under section 1
to enforce a term of the contract, the parties to the contract may not, by agreement,
rescind the contract, or vary it in such a way as to extinguish or alter his entitlement
under that right, without his consent if—
24
(a)
the third party has communicated his assent to the term to the promisor,
(b)
the promisor is aware that the third party has relied on the term, or
(c)
the promisor can reasonably be expected to have foreseen that the third party would
rely on the term and the third party has in fact relied on it.
The Law of Contract & Tort
DEFAMATION ACT 2013
1.
Serious harm
(1)
A statement is not defamatory unless its publication has caused or is likely to cause serious harm
to the reputation of the claimant.
(2)
…
2.
Truth
(1)
It is a defence to an action for defamation for the defendant to show that the imputation
conveyed by the statement complained of is substantially true.
(2)
Subsection (3) applies in an action for defamation if the statement complained of
conveys two or more distinct imputations.
(3)
If one or more of the imputations is not shown to be substantially true, the defence under
this section does not fail if, having regard to the imputations which are shown to be
substantially true, the imputations which are not shown to be substantially true do not
seriously harm the claimant’s reputation.
(4)
The common law defence of justification is abolished and, accordingly, section 5 of the
Defamation Act 1952 (justification) is repealed.
3.
Honest opinion
(1)
It is a defence to an action for defamation for the defendant to show that the following
conditions are met.
(2)
The first condition is that the statement complained of was a statement of opinion.
(3)
The second condition is that the statement complained of indicated, whether in general or
specific terms, the basis of the opinion.
(4)
The third condition is that an honest person could have held the opinion on the basis of—
(a)
any fact which existed at the time the statement complained of was published;
(b)
….
(5)
The defence is defeated if the claimant shows that the defendant did not hold the opinion.
(6)
subsection (5) does not apply in a case where the statement complained of was published by
the defendant but made by another person (“the author”); and in such a case the defence is
defeated if the claimant shows that the defendant knew or ought to have known that the author
did not hold the opinion.
(7)
…
(8)
The common law defence of fair comment is abolished and, accordingly, section 6 of the
Defamation Act 1952 (fair comment) is repealed.
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25
4.
Publication on matter of public interest
(1)
It is a defence to an action for defamation for the defendant to show that—
(a)
the statement complained of was, or formed part of, a statement on a matter of public
interest; and
(b)
the defendant reasonably believed that publishing the statement complained of was in
the public interest.
(2)
Subject to subsections (3) and (4), in determining whether the defendant has shown the
matters mentioned in subsection (1), the court must have regard to all the circumstances of the
case.
(3)
…
(4)
In determining whether it was reasonable for the defendant to believe that publishing the
statement complained of was in the public interest, the court must make such allowance for
editorial judgement as it considers appropriate.
(5)
for the avoidance of doubt, the defence under this section may be relied upon irrespective of
whether the statement complained of is a statement of fact or a statement of opinion.
(6)
The common law defence known as the Reynolds defence is abolished.
26
The Law of Contract & Tort
FATAL ACCIDENTS ACT 1976
1.
Right of action for wrongful act causing death
(1)
If death is caused by any wrongful act, neglect or default which is such as would (if death
had not ensued) have entitled the person injured to maintain an action and recover damages
in respect thereof, the person who would have been liable if death had not ensued shall
be liable to an action for damages, notwithstanding the death of the person injured.
(2)
Subject to section 1A(2) below, every such action shall be for the benefit of the dependants of
the person (“the deceased”) whose death has been so caused.
(3)
In this Act “dependant” means -
(4)
(a)
the wife or husband or former wife or husband of the deceased; (aa) the civil partner or
former civil partner of the deceased;
(b)
any person who (i)
was living with the deceased in the same household immediately before the
date of the death; and
(ii)
had been living with the deceased in the same household for at least two years
before that date; and
(iii)
was living during the whole of that period as the husband or wife or civil partner of
the deceased;
(c)
any parent or other ascendant of the deceased;
(d)
any person who was treated by the deceased as his parent;
(e)
any child or other descendant of the deceased;
(f)
any person (not being a child of the deceased) who, in the case of any marriage to
which the deceased was at any time a party, was treated by the deceased as a child
of the family in relation to that marriage;
(fa)
any person (not being a child of the deceased) who, in the case of any civil
partnership in which the deceased was at any time a civil partner, was treated by the
deceased as a child of the family in relation to that civil partnership;
(g)
any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.
The reference to the former wife or husband of the deceased in subsection (3)(a) above
includes a reference to a person whose marriage to the deceased has been annulled or
declared void as well as a person whose marriage to the deceased has been dissolved.
(4A) The reference to the former civil partner of the deceased in subsection (3)(aa) above includes a
reference to a person whose civil partnership with the deceased has been annulled as well as a
person whose civil partnership with the deceased has been dissolved.
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27
(5)
In deducing any relationship for the purposes of subsection (3) above (a)
any relationship by marriage or civil partnership. shall be treated as a relationship by
consanguinity, any relationship of the half blood as a relationship of the whole blood, and
the stepchild of any person as his child, and
(b)
an illegitimate person shall be treated as the legitimate child of his mother and
reputed father.
(6)
Any reference in this Act to injury includes any disease and any impairment of a person’s
physical or mental condition.]
1A
Bereavement
(1)
An action under this Act may consist of or include a claim for damages for bereavement.
(2)
A claim for damages for bereavement shall only be for the benefit (a)
of the wife or husband or civil partner of the deceased; and
(b)
where the deceased was a minor who was never married or a civil partner (i)
of his parents, if he was legitimate; and
(ii)
of his mother, if he was illegitimate.
(3)
Subject to subsection (5) below, the sum to be awarded as damages under this section shall be
[£15,120].
(4)
Where there is a claim for damages under this section for the benefit of both the parents of the
deceased, the sum awarded shall be divided equally between them (subject to any deduction
falling to be made in respect of costs not recovered from the defendant).
(5)
The Lord Chancellor may by order made by statutory instrument, subject to annulment in
pursuance of a resolution of either house of Parliament, amend this section by varying the sum
for the time being specified in subsection (3) above.
2.
Persons entitled to bring the action
(1)
The action shall be brought by and in the name of the executor or administrator of the
deceased.
(2)
If (a)
there is no executor or administrator of the deceased, or
(b)
no action is brought within six months after the death by and in the name of an
executor or administrator of the deceased,
the action may be brought by and in the name of all or any of the persons for whose
benefit an executor or administrator could have brought it.
(3)
28
Not more than one action shall lie for and in respect of the same subject matter of complaint.
The Law of Contract & Tort
(4)
The plaintiff in the action shall be required to deliver to the defendant or his solicitor full
particulars of the persons for whom and on whose behalf the action is brought and of the nature
of the claim in respect of which damages are sought to be recovered.
3.
Assessment of damages
(1)
In the action such damages, other than damages for bereavement, may be awarded as are
proportioned to the injury resulting from the death to the dependants respectively.
(2)
After deducting the costs not recovered from the defendant any amount recovered otherwise than
as damages for bereavement shall be divided among the dependants in such shares as may be
directed.
(3)
In an action under this Act where there fall to be assessed damages payable to a widow
in respect of the death of her husband there shall not be taken account the re-marriage
of the widow or her prospects of re-marriage.
(4)
In an action under this Act where there fall to be assessed damages payable to a person who
is a dependant by virtue of section 1(3)(b) above in respect of the death of the person with
whom the dependant was living as husband or wife or civil partner there shall be taken into account
(together with any other matter that appears to the court to be relevant to the action) the fact
that the dependant had no enforceable right to financial support by the deceased as a result of
their living together.
(5)
If the dependants have incurred funeral expenses in respect of the deceased, damages may be
awarded in respect of those expenses.
(6)
Money paid into court in satisfaction of a cause of action under this Act may be in one sum
without specifying any person’s share.
4.
Assessment of damages: disregard of benefits
In assessing damages in respect of a person’s death in an action under this Act, benefits which
have accrued or will or may accrue to any person from his estate or otherwise as a result of his
death shall be disregarded.
5.
Contributory negligence
Where any person dies as the result partly of his own fault and partly of the fault of any other person
or persons, and accordingly if an action were brought for the benefit of the estate under the
Law Reform (Miscellaneous Provisions) Act 1934 the damages recoverable would be reduced
under section 1(1) of the Law Reform (Contributory negligence) Act 1945, any damages
recoverable in an action . . . under this Act shall be reduced to a proportionate extent.
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29
LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT 1945
1.
Apportionment of liability in case of contributory negligence
(1)
Where any person suffers damage as the result partly of his own fault and partly of the fault of any
other person or persons, a claim in respect of that damage shall not be defeated by reason of
the fault of the person suffering the damage, but the damages recoverable in respect thereof shall
be reduced to such extent as the court thinks just and equitable having regard to the claimant’s
share in the responsibility for the damage:
Provided that -
(2)
(a)
this subsection shall not operate to defeat any defence arising under a contract;
(b)
where any contract or enactment providing for the limitation of liability is applicable to the
claim, the amount of damages recoverable by the claimant by virtue of this subsection
shall not exceed the maximum limit so applicable.
Where damages are recoverable by any person by virtue of the foregoing subsection subject to
such reduction as is therein mentioned, the court shall find and record the total damages which
would have been recoverable if the claimant had not been at fault.
**
4.
*
Interpretation
The following expressions have the meanings hereby respectively assigned to them, that is to say
“court” means, in relation to any claim, the court or arbitrator by or before whom the claim
falls to be determined;
“damage” includes loss of life and personal injury;
“fault” means negligence, breach of statutory duty or other act or omission which gives
rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory
negligence; . . .
30
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LAW REFORM (FRUSTRATED CONTRACTS) ACT 1943
1.
Adjustment of rights and liabilities of parties to frustrated contracts
(1)
Where a contract governed by English law has become impossible of performance or been
otherwise frustrated, and the parties thereto have for that reason been discharged from the
further performance of the contract, the following provisions of this section shall, subject to the
provisions of section two of this Act, have effect in relation thereto.
(2)
All sums paid or payable to any party in pursuance of the contract before the time when the
parties were so discharged (in this Act referred to as “the time of discharge”) shall, in the case
of sums so paid, be recoverable from him as money received by him for the use of the party by
whom the sums were paid, and, in the case of sums so payable; cease to be so payable:
Provided that, if the party to whom the sums were so paid or payable incurred expenses before
the time of discharge in, or for the purpose of, the performance of the contract, the court may,
if it considers it just to do so having regard to all the circumstances of the case, allow him to retain
or, as the case may be, recover the whole or any part of the sums so paid or payable, not being an
amount in excess of the expenses so incurred.
(3)
Where any party to the contract has, by reason of anything done by any other party thereto in, or
for the purpose of, the performance of the contract, obtained a valuable benefit (other than a
payment of money to which the last foregoing subsection applies) before the time of discharge,
there shall be recoverable from him by the said other party such sum (if any), not exceeding the
value of the said benefit to the party obtaining it, as the court considers just, having regard to all
the circumstances of the case and, in particular, (a)
the amount of any expenses incurred before the time of discharge by the benefited party
in, or for the purpose of, the performance of the contract, including any sums paid or
payable by him to any other party in pursuance of the contract and retained or recoverable
by that party under the last foregoing subsection, and
(b)
the effect, in relation to the said benefit, of the circumstances giving rise to the
frustration of the contract.
(4)
In estimating, for the purposes of the foregoing provisions of this section, the amount of any
expenses incurred by any party to the contract, the court may, without prejudice to the generality
of the said provisions, include such sum as appears to be reasonable in respect of overhead
expenses and in respect of any work or services performed personally by the said party.
(5)
In considering whether any sum ought to be recovered or retained under the foregoing
provisions of this section by any party to the contract, the court shall not take into account any
sums which have, by reason of the circumstances giving rise to the frustration of the contract,
become payable to that party under any contract of insurance unless there was an obligation to
insure imposed by an express term of the frustrated contract or by or under anyenactment.
(6)
Where any person has assumed obligations under the contract in consideration of the
conferring of a benefit by any other party to the contract upon any other person, whether a party
to the contract or not, the court may, if in all the circumstances of the case it considers it just to do
so, treat for the purposes of subsection (3) of this section any benefit so conferred as a benefit
obtained by the person who has assumed the obligations as aforesaid.
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31
2.
Provision as to application of this Act
(1)
This Act shall apply to contracts, whether made before or after the commencement of this Act, as
respects which the time of discharge is on or after the 1st day of July, nineteen hundred and fortythree but not to contracts as respects which the time of discharge is before the said date.
(2)
This Act shall apply to contracts to which the Crown is a party in like manner as to contracts between
subjects.
(3)
Where any contract to which this Act applies contains any provision which, upon the true
construction of the contract, is intended to have effect in the event of circumstances arising which
operate, or would but for the said provision operate, to frustrate the contract, or is intended to
have effect whether such circumstances arise or not, the court shall give effect to the said
provision and shall only give effect to the foregoing section of this Act to such extent, if any, as
appears to the court to be consistent with the said provision.
(4)
Where it appears to the court that a part of any contract to which this Act applies can properly be
severed from the remainder of the contract, being a part wholly performed before the time of
discharge, or so performed except for the payment in respect of that part of the contract of sums
which are or can be ascertained under the contract, the court shall treat that part of the contract
as if it were a separate contract and had not been frustrated and shall treat the foregoing section
of this Act as only applicable to the remainder of that contract.
(5)
This Act shall not apply -
32
(a)
to any charterparty, except a time charterparty or a charterparty by way of demise, or to any
contract (other than a charterparty) for the carriage of goods by sea; or
(b)
to any contract of insurance, save as is provided by subsection (5) of the foregoing section;
or
(c)
to any contract to which section 7 of the sale of goods Act 1979 (which avoids contracts
for the sale of specific goods which perish before the risk has passed to the buyer) applies,
or to any other contract for the sale, or for the sale and delivery, of specific goods, where
the contract is frustrated by reason of the fact that the goods have perished.
The Law of Contract & Tort
LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1934
1.
Effect of death on certain causes of action.
(1)
subject to the provisions of this section, on the death of any person after the commencement of
this Act all causes of action subsisting against or vested in him shall survive against, or, as the case
may be, for the benefit of, his estate. Provided that this subsection shall not apply to causes of
action for defamation […..]
[(1A) The right of a person to claim under section 1A of the fatal Accidents Act 1976 (bereavement) shall
not survive for the benefit of his estate on his death.]
(2)
Where a cause of action survives as aforesaid for the benefit of the estate of a deceased
person, the damages recoverable for the benefit of the estate of that person:[(a)
shall not include –
(i)
any exemplary damages;
(ii)
any damages for loss of income in respect of any period after that person’s death;]
(b)
[…]
(c)
where the death of that person has been caused by the act or omission which gives rise to
the cause of action, shall be calculated without reference to any loss or gain to his
estate consequent on his death, except that a sum in respect of funeral expenses may be
included.
(4)
Where damage has been suffered by reason of any act or omission in respect of which a cause of
action would have subsisted against any person if that person had not died before or at the same
time as the damage was suffered, there shall be deemed, for the purposes of this Act, to have
been subsisting against him before his death such cause of action in respect of that act or
omission as would have subsisted if he had died after the damage was suffered.
(5)
The rights conferred by this Act for the benefit of the estates of deceased persons shall be in
addition to and not in derogation of any rights conferred on the dependants of deceased persons
by [the fatal Accidents Act 1976 ……..] and so much of this Act as relates to causes of action against
the estates of deceased persons shall apply in relation to causes of action under the said Act as
it applies in relation to other causes of action not expressly excepted from the operation of
subsection (1) of this section.
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33
LAW REFORM (PERSONAL INJURIES) ACT 1948
2.
Measure of damages
(4)
In an action for damages for personal injuries (including any such action arising out of a
contract), there shall be disregarded, in determining the reasonableness of any expenses, the
possibility of avoiding those expenses or part of them by taking advantage of facilities available
under the national health service Act 2006 or the national health service (Wales) Act 2006 or the
national health service (Scotland) Act 1947 or of any corresponding facilities in Northern Ireland.
34
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MISREPRESENTATION ACT 1967
1.
Removal of certain bars to rescission for innocent misrepresentation
Where a person has entered into a contract after a misrepresentation has been made to him, and(a)
the misrepresentation has become a term of the contract; or
(b)
the contract has been performed;
or both, then, if otherwise he would be entitled to rescind the contract without alleging fraud,
he shall be so entitled, subject to the provisions of this Act, notwithstanding the matters
mentioned in paragraphs (a) and (b) of this section.
2.
Damages for misrepresentation
(1)
Where a person has entered into a contract after a misrepresentation has been made to
him by another party thereto and as a result thereof he has suffered loss, then, if the person
making the misrepresentation would be liable to damages in respect thereof had the
misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the
misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to
believe and did believe up to the time the contract was made that the facts represented
were true.
(2)
Where a person has entered into a contract after a misrepresentation has been made to him
otherwise than fraudulently, and he would be entitled, by reason of the misrepresentation, to
rescind the contract, then, if it is claimed, in any proceedings arising out of the contract, that the
contract ought to be or has been rescinded, the court or arbitrator may declare the contract
subsisting and award damages in lieu of rescission, if of opinion that it would be equitable to do
so, having regard to the nature of the misrepresentation and the loss that would be caused by it
if the contract were upheld, as well as to the loss that rescission would cause to the other party.
(3)
Damages may be awarded against a person under subsection (2) of this section whether or not
he is liable to damages under subsection (1) thereof, but where he is so liable any award under the
said subsection (2) shall be taken into account in assessing his liability under the said subsection
(1).
3.
Avoidance of provision excluding liability for misrepresentation
(1)
If a contract contains a term which would exclude or restrict (a)
any liability to which a party to a contract may be subject by reason of any
misrepresentation made by him before the contract was made; or
(b)
any remedy available to another party to the contract by reason of such a
misrepresentation,
that term shall be of no effect except in so far as it satisfies the requirement of reasonableness as
stated in section 11 (1) of the Unfair Contract Terms Act 1977; and it is for those claiming that the
term satisfies that requirement to show that it does.
(2)
This section does not apply to a term in a consumer contract within the meaning of Part 2 of the
Consumer Rights Act 2015 (but see the provision made about such contracts in section 62 of that
Act).
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35
OCCUPIERS’ LIABILITY ACT 1957
LIABILITY IN TORT
1.
Preliminary
(1)
The rules enacted by the two next following sections shall have effect, in place of the rules of the
common law, to regulate the duty which an occupier of premises owes to his visitors in respect
of dangers due to the state of the premises or to things done or omitted to be done on them.
(2)
The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a
person’s occupation or control of premises and of any invitation or permission he gives (or is to
be treated as giving) to another to enter or use the premises, but they shall not alter the rules
of the common law as to the persons on whom a duty is so imposed or to whom it is owed;
and accordingly for the purpose of the rules so enacted the persons who are to be treated as an
occupier and as his visitors are the same (subject to subsection (4) of this section) as the persons
who would at common law be treated as an occupier and as his invitees or licensees.
(3)
The rules so enacted in relation to an occupier of premises and his visitors shall also apply, in like
manner and to the like extent as the principles applicable at common law to an occupier of
premises and his invitees or licensees would apply, to regulate -
(4)
(a)
the obligations of a person occupying or having control over any fixed or moveable
structure, including any vessel, vehicle or aircraft; and
(b)
the obligations of a person occupying or having control over any premises or structure
in respect of damage to property, including the property of persons who are not
themselves his visitors.
A person entering any premises in exercise of rights conferred by virtue of—
(a)
section 2(1) of the Countryside and Rights of Way Act 2000, or
(b)
an access agreement or order under the national Parks and Access to the Countryside Act
1949,
is not, for the purposes of this Act, a visitor of the occupier of the premises.
2.
Extent of occupier’s ordinary duty
(1)
An occupier of premises owes the same duty, the “common duty of care” to all his visitors, except
in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or
visitors by agreement or otherwise.
(2)
The common duty of care is a duty to take such care as in all the circumstances of the case is
reasonable to see that the visitor will be reasonably safe in using the premises for the purposes
for which he is invited or permitted by the occupier to be there.
(3)
The circumstances relevant for the present purpose include the degree of care, and of want of
care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases (a)
36
an occupier must be prepared for children to be less careful than adults; and
The Law of Contract & Tort
(b)
(4)
an occupier may expect that a person, in the exercise of his calling, will appreciate and guard
against any special risks ordinarily incident to it, so far as the occupier leaves him free to
do so.
In determining whether the occupier of premises has discharged the common duty of care to a
visitor, regard is to be had to all the circumstances, so that (for example) (a)
where damage is caused to a visitor by a danger of which he had been warned by the occupier,
the warning is not to be treated without more as absolving the occupier from liability,
unless in all the circumstances it was enough to enable the visitor to be reasonably safe;
and
(b)
where damage is caused to a visitor by a danger due to the faulty execution of any work of
construction, maintenance or repair by an independent contractor employed by the occupier,
the occupier is not to be treated without more as answerable for the danger if in all the
circumstances he had acted reasonably in entrusting the work to an independent contractor
and had taken such steps (if any) as he reasonably ought in order to satisfy himself that
the contractor was competent and that the work had been properly done.
(5)
The common duty of care does not impose on an occupier any obligation to a visitor in
respect of risks willingly accepted as his by the visitor (the question whether a risk was so
accepted to be decided on the same principles as in other cases in which one person owes a
duty of care to another).
(6)
for the purposes of this section, persons who enter premises for any purpose in the exercise of
right conferred by law are to be treated as permitted by the occupier to be there for that purpose,
whether they in fact have his permission or not.
* * *
LIABILITY IN CONTRACT
5.
Implied term in contracts
(1)
Where persons enter or use, or bring or send goods to, any premises in exercise of a right
conferred by contract with a person occupying or having control of the premises, the duty he
owes them in respect of dangers due to the state of the premises or to things done or omitted
to be done on them, in so far as the duty depends on a term to be implied in the contract by
reason of its conferring that right, shall be the common duty of care.
(2)
The foregoing subsection shall apply to fixed and moveable structures as it applies to
premises.
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37
OCCUPIERS’ LIABILITY ACT 1984
1.
Duty of occupier to persons other than his visitors
(1)
The rules enacted by this section shall have effect, in place of the rules of the common law, to
determine -
(2)
(3)
(a)
whether any duty is owed by a person as occupier of premises to persons other than
his visitors in respect of any risk of their suffering injury on the premises by reason of any
danger due to the state of the premises or to things done or omitted to be done on them;
and
(b)
if so, what that duty is.
for the purposes of this section, the persons who are to be treated respectively as an occupier of
any premises (which, for those purposes, include any fixed or movable structure) and as his
visitors are(a)
any person who owes in relation to the premises the duty referred to in section 2 of the
Occupiers’ Liability Act 1957 (the common duty of care), and
(b)
those who are his visitors for the purposes of that duty.
An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk
as is referred to in subsection (1) above if (a)
he is aware of the danger or has reasonable grounds to believe that it exists;
(b)
he knows or has reasonable grounds to believe that the other is in the vicinity of the
danger concerned or that he may come into the vicinity of the danger (in either case,
whether the other has lawful authority for being in that vicinity or not); and
(c)
the risk is one against which, in all the circumstances of the case, he may reasonably be
expected to offer the other some protection.
(4)
Where, by virtue of this section, an occupier of premises owes a duty to another in respect of
such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to
see that he does not suffer injury on the premises by reason of the danger concerned.
(5)
Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be
discharged by taking such steps as are reasonable in all the circumstances of the case to give
warning of the danger concerned or to discourage persons from incurring the risk.
(6)
No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his
by that person (the question whether a risk was so accepted to be decided on the same
principles as in other cases in which one person owes a duty of care to another).
(6A) At any time when the right conferred by section 2(1) of the Countryside and Rights of
Way Act 2000 is exercisable in relation to land which is access land for the purposes of
Part I of that Act, an occupier of the land owes (subject to subsection (6C) below) no
duty by virtue of this section to any person in respect of—
(a)
38
a risk resulting from the existence of any natural feature of the landscape, or any river,
The Law of Contract & Tort
stream, ditch or pond whether or not a natural feature, or
(b)
a risk of that person suffering injury when passing over, under or through any wall, fence or
gate, except by proper use of the gate or of a stile.
(6AA) Where the land is coastal margin for the purposes of Part 1 of that Act (including any land treated
as coastal margin by virtue of section 16 of that Act), subsection (6A) has effect as if for
paragraphs (a) and (b) of that subsection there were substituted “a risk resulting from the
existence of any physical feature (whether of the landscape or otherwise).
(6B) For the purposes of subsection (6A) above, any plant, shrub or tree, of whatever origin, is to be
regarded as a natural feature of the landscape.
(6C) Subsection (6A) does not prevent an occupier from owing a duty by virtue of this section in
respect of any risk where the danger concerned is due to anything done by the occupier—
(a)
with the intention of creating that risk, or
(b)
being reckless as to whether that risk is created.”
(7)
no duty is owed by virtue of this section to persons using the highway, and this section does not
affect any duty owed to such persons.
(8)
Where a person owes a duty by virtue of this section, he does not, by reason of any breach of
the duty, incur any liability in respect of any loss of or damage to property.
(9)
In this section “highway” means any part of a highway other than a ferry or waterway;
“injury” means anything resulting in death or personal injury, including any disease and any
impairment of physical or mental condition; and
“moveable structure” includes any vessel, vehicle or aircraft.
1A. Special considerations relating to access land
In determining whether any, and if so what, duty is owed by virtue of section 1 by an occupier of land
at any time when the right conferred by section 2(1) of the Countryside and Rights of Way Act
2000 is exercisable in relation to the land, regard is to be had, in particular, to—
(a)
the fact that the existence of that right ought not to place an undue burden (whether financial
or otherwise) on the occupier,
(b)
the importance of maintaining the character of the countryside, including features of
historic, traditional or archaeological interest, and
(c)
any relevant guidance given under section 20 of that Act.”
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39
SALE OF GOODS ACT 1979
* * *
PART II FORMATION OF THE CONTRACT
8.
Ascertainment of price
(1)
The price in a contract of sale may be fixed by the contract, or may be left to be fixed in a manner
agreed by the contract, or may be determined by the course of dealing between the parties.
(2)
Where the price is not determined as mentioned in subsection (1) above the buyer must pay a
reasonable price.
(3)
What is a reasonable price is a question of fact dependent on the circumstances of each
particular case.
* * *
11.
When condition to be treated as warranty
(1)
.
(2)
Where a contract of sale is subject to a condition to be fulfilled by the seller, the buyer may waive
the condition, or may elect to treat the breach of the condition as a breach of warranty and not as a
ground for treating the contract as repudiated.
(3)
Whether a stipulation in a contract of sale is a condition, the breach of which may give rise to a
right to treat the contract as repudiated, or a warranty, the breach of which may give rise to a
claim for damages but not to a right to reject the goods and treat the contract as repudiated,
depends in each case on the construction of the contract; and a stipulation may be a condition,
though called a warranty in the contract.
(4)
Subject to s35A below, where a contract of sale is not severable and the buyer has accepted the
goods or part of them, the breach of a condition to be fulfilled by the seller can only be treated
as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as
repudiated, unless there is an express or implied term of the contract to that effect.
. .
(4A) Subsection (4) does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights
Act 2015 applies (but see the provision made about such contracts in sections 19 to 22 of that Act
. . .
12.
Implied terms about title, etc.
(1)
In a contract of sale, other than one to which subsection (3) below applies, there is an implied term
on the part of the seller that in the case of a sale, he has a right to sell the goods, and in the case
of an agreement to sell he will have such a right at the time when the property is to pass.
. . .
(5A) As regards England and Wales and northern Ireland, the term implied by subsection (1) above is a
condition and the terms implied by subsections (2), (4) and (5) above are warranties.
40
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. . .
(7)
This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act
2015 applies (but see the provision made about such contracts in section 17 of that Act)
13.
Sale by description
(1)
Where there is a contract for the sale of goods by description, there is an implied term that the
goods will correspond with the description.
(1A) As regards England and Wales and Northern Ireland, the term implied by subsection (1) above
is a condition.
(5)
This section does not apply to a contract to which Chapter 2 Part 1 of the Consumer Rights Act
2015 applies. . .
.
. .
14.
Implied terms about quality or fitness
(1)
Except as provided by this section ......and subject to any other enactment, there is no implied
term about the quality or fitness for any particular purpose of goods supplied under a contract of
sale.
(2)
Where the seller sells goods in the course of a business, there is an implied term that the goods
supplied under the contract are of satisfactory quality.
(2A) For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a
reasonable person would regard as satisfactory, taking account of any description of the goods,
the price (if relevant) and all the other relevant circumstances.
(2B) For the purposes of this Act, the quality of the goods includes their state and condition and the
following (among others) are in appropriate cases aspects of the quality of goods (a)
fitness for all the purposes for which goods of the kind in question are commonly supplied,
(b)
appearance and finish,
(c)
freedom from minor defects,
(d)
safety, and
(e)
durability.
(2C) The term implied by subsection (2) above does not extend to any matter making the quality of
goods unsatisfactory -
(3)
(a)
which is specifically drawn to the buyer’s attention before the contract is made,
(b)
where the buyer examines the goods before the contract is made, which that
examination ought to reveal
.
. . .
Where the seller sells goods in the course of a business and the buyer, expressly or
by implication, makes known -
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41
(a)
to the seller, or
(b)
.
. .
any particular purpose for which the goods are being bought, there is an implied term that the
goods supplied under the contract are reasonably fit for that purpose, whether or not that is a
purpose for which such goods are commonly supplied, except where the circumstances show
that the buyer does not rely, or that it is unreasonable for him to rely, on the skill or judgment of
the seller ...
(4)
An implied term about quality or fitness for a particular purpose may be annexed to a contract
of sale by usage.
. . .
(6)
As regards England and Wales and Northern Ireland, the terms implied by subsections (2) and (3)
above are conditions.
. . .
(9)
This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer
Rights Act 2015 applies. . .
15A. Modification of remedies for breach of condition in non-consumer cases
(1)
Where in the case of a contract of sale (a)
the buyer would, apart from this subsection, have the right to reject goods by reason of a
breach on the part of the seller of a term implied by section 13, 14 or 15 above, but
(b)
the breach is so slight that it would be unreasonable for him to reject them,
the breach is not to be treated as a breach of condition but may be treated as a breach of
warranty.
(2)
This section applies unless a contrary intention appears in, or is to be implied from, the
contract.
(3)
It is for the seller to show that a breach fell within subsection (1)(b) above.
.
. .
* * *
42
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PART IV PERFORMANCE OF THE CONTRACT
34.
Buyer’s right of examining the goods
(1)
Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound on
request to afford the buyer a reasonable opportunity of examining the goods for the purpose
of ascertaining whether they are in conformity with the contract. . . . .
(2)
Nothing in this section affects the operation of s22 (time limit for short-term right to reject) of the
Consumer Rights Act 2015
35.
Acceptance
(1)
The buyer is deemed to have accepted the goods subject to subsection (2) below -
(2)
(a)
when he intimates to the seller that he has accepted them, or
(b)
when the goods have been delivered to him and he does any act in relation to them which
is inconsistent with the ownership of the seller.
Where goods are delivered to the buyer, and he has not previously examined them, he is not
deemed to have accepted them under subsection (1) above until he has had a reasonable
opportunity of examining them for the purpose(a)
of ascertaining whether they are in conformity with the contract, and
(b)
.
.
. .
.
.
(4)
The buyer is also deemed to have accepted the goods when after the lapse of a reasonable
time he retains the goods without intimating to the seller that he has rejected them.
(5)
The questions that are material in determining for the purposes of subsection (4) above
whether a reasonable time has elapsed include whether the buyer has had a reasonable
opportunity of examining the goods for the purpose mentioned in subsection (2) above.
(6)
The buyer is not by virtue of this section deemed to have accepted the goods merely because(a)
he asks for, or agrees to, their repair by or under an arrangement with the seller, or
(b)
the goods are delivered to another under a sub-sale or other disposition.
.
(9)
.
.
.
.
This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights
Act 2015 applies . . .
*
*
*
35A. Right of partial rejection
(1)
If the buyer –
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(a)
has the right to reject the goods by reason of a breach on the part of the seller that affects
some or all of them, but
(b)
accepts some of the goods, including, where there are any goods unaffected by the breach,
all such goods,
he does not by accepting them lose his right to reject the rest.
(2)
In the case of a buyer having the right to reject an instalment of goods, subsection (1) above applies
as if references to the goods were references to the goods comprised in the instalment.
(3)
For the purposes of subsection (1) above, goods are affected by a breach if by reason of the
breach they are not in conformity with the contract.
(4)
This section applies unless a contrary intention appears in, or is to be implied from, the
contract.
(5)
This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights
Act 2015 applies. . .
PART VI ACTIONS FOR BREACH OF THE CONTRACT
49.
Action for price
(1)
Where, under a contract of sale, the property in the goods has passed to the buyer and he
wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the
seller may maintain an action against him for the price of the goods.
.
. . .
50.
Damages for non-acceptance
(1)
Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may
maintain an action against him for damages for non-acceptance.
(2)
The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course
of events, from the buyer’s breach of contract.
(3)
Where there is an available market for the goods in question the measure of damages is prima
facie to be ascertained by the difference between the contract price and the market or current
price at the time or times when the goods ought to have been accepted or (if no time was fixed
for acceptance) at the time of the refusal to accept.
51.
Damages for non-delivery
(1)
Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may
maintain an action against the seller for damages for non-delivery.
(2)
The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course
of events, from the seller’s breach of contract.
(3)
Where there is an available market for the goods in question the measure of damages is prima
facie to be ascertained by the difference between the contract price and the market or current
price of the goods at the time or times when they ought to have been delivered or (if no time
44
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was fixed) at the time of the refusal to deliver.
(4)
This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights
Act 2015 applies. . .
* *
*
53.
Remedy for breach of warranty
(1)
.
(2)
The measure of damages for breach of warranty is the estimated loss directly and naturally
resulting, in the ordinary course of events, from the breach of warranty.
(3)
In the case of breach of warranty of quality such loss is prima facie the difference between the
value of the goods at the time of delivery to the buyer and the value they would have had if
they had fulfilled the warranty.
. .
(4A) This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights
Act 2015 applies. . .
*
*
*
PART VII SUPPLEMENTARY
57.
Auction sales
(1)
Where goods are put up for sale by auction in lots, each lot is prima facie deemed to be the
subject of a separate contract of sale.
(2)
A sale by auction is complete when the auctioneer announces its completion by the fall of the
hammer, or in other customary manner; and until the announcement is made any bidder may
retract his bid.
(3)
A sale by auction may be notified to be subject to a reserve or upset price, and a right to bid may
also be reserved expressly by or on behalf of the seller.
(4)
Where a sale by auction is not notified to be subject to a right to bid by or on behalf of the seller,
it is not lawful for the seller to bid himself or to employ any person to bid at the sale, or for the
auctioneer knowingly to take any bid from the seller or any such person.
(5)
A sale contravening subsection (4) above may be treated as fraudulent by the buyer.
(6)
Where, in respect of a sale by auction, a right to bid is expressly reserved (but not otherwise) the
seller or any one person on his behalf may bid at the auction.
*
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* *
45
61.
Interpretation
(1)
In this Act, unless the context or subject matter otherwise requires, .
. .
“goods” includes all personal chattels other than things in action and money, and in
Scotland all corporeal movables except money; and in particular “goods” includes
emblements, industrial growing crops, and things attached to or forming part of the land which
are agreed to be severed before sale or under the contract of sale;
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SUPPLY OF GOODS AND SERVICES ACT 1982
PART I SUPPLY OF GOODS
2.
Implied terms about title, etc.
(1)
In a relevant contract for the transfer of goods . . . . there is an implied condition on
the part of the transferor that in the case of a transfer of the property in the goods he
has a right to transfer the property and in the case of an agreement to transfer the
property in the goods, he will have such a right at the time when the property is to be
transferred.
.
. .
3.
Implied terms where transfer is by description
(1)
This section applies where, under a relevant contract for the transfer of goods, the transferor
transfers or agrees to transfer the property in the goods by description.
(2)
In such a case there is an implied condition that the goods will correspond with the
description.
.
. .
4.
Implied terms about quality or fitness
(1)
Except as provided by this section . . . and subject to the provisions of any other enactment,
there is no implied condition or warranty about the quality or fitness for any particular purpose
of goods supplied under a relevant contract for the transfer of goods.
(2)
Where, under such a contract, the transferor transfers the property in goods in the course of a
business, there is an implied condition that the goods supplied under the contract are of
satisfactory quality.
(2A) For the purposes of this section . . . goods are of satisfactory quality if they meet the
standard that a reasonable person would regard as satisfactory, taking account of any description
of the goods, the price (if relevant) and all the other relevant circumstances.
(3)
(4)
The condition implied by subsection (2) above does not extend to any matter making the quality
of goods unsatisfactory (a)
which is specifically drawn to the transferee’s attention before the contract is made,
(b)
where the transferee examines the goods before the contract is made, which that
examination ought to reveal, or
(c)
.
. .
Subsection (5) below applies where, under a relevant contract for the transfer of goods,
the transferor transfers the property in goods in the course of a business and the
transferee, expressly or by implication, makes known (a)
to the transferor, or
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47
(b)
.
.
.
any particular purpose for which the goods are being acquired.
(5)
In that case there is (subject to subsection (6) below) an implied condition that the goods
supplied under the contract are reasonably fit for that purpose, whether or not that is a
purpose for which such goods are commonly supplied.
(6)
Subsection (5) does not apply where the circumstances show that the transferee does not rely,
or that it is unreasonable for him to rely, on the skill or judgment of the transferor . . .
(7)
An implied condition or warranty about quality or fitness for a particular purpose may be
annexed by usage to a relevant contract for the transfer of goods.
.
.
. .
5A. Modification of remedies for breach of statutory condition in non-consumer
cases
(1)
Where in the case for the transfer of goods (a)
the transferee would, apart from this subsection, have the right to treat the contract as
repudiated by reason of a breach on the part of the transferor of a term implied by section
3, 4, . . . above, but
(b)
the breach is so slight that it would be unreasonable for him to do so,
the breach is not to be treated as a breach of condition but may be treated as a breach of
warranty.
(2)
This section applies unless a contrary intention appears in, or is to be implied from, the
contract.
(3)
It is for the transferor to show that a breach fell within subsection (1)(b) above.
* * *
PART II SUPPLY OF SERVICES
13.
Implied term about care and skill
In a relevant contract for the supply of a service where the supplier is acting in the course of a
business, there is an implied term that the supplier will carry out the service with reasonable care
and skill.
14.
Implied term about time for performance
(1)
Where, under a relevant contract for the supply of a service by a supplier acting in the course
of a business, the time for the service to be carried out is not fixed by the contract, left to be
fixed in a manner agreed by the contract or determined by the course of dealing between the
parties, there is an implied term that the supplier will carry out the service within a reasonable
time.
(2)
What is a reasonable time is a question of fact.
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15.
Implied term about consideration
(1)
Where, under a relevant contract for the supply of a service, the consideration for the service is not
determined by the contract, left to be determined in a manner agreed by the contract or
determined by the course of dealing between the parties, there is an implied term that the party
contracting with the supplier will pay a reasonable charge.
(2)
What is a reasonable charge is a question of fact.
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49
UNFAIR CONTRACT TERMS ACT 1977
PART I AMENDMENT OF LAW FOR ENGLAND AND WALES AND NORTHERN IRELAND
1.
Scope of Part I
(1)
for the purposes of this Part of this Act, “negligence” means the breach (a)
of any obligation, arising from the express or implied terms of a contract, to take
reasonable care or exercise reasonable skill in the performance of the contract;
(b)
of any common law duty to take reasonable care or exercise reasonable skill (but not any
stricter duty);
(c)
of the common duty of care imposed by the Occupiers’ Liability Act 1957.
(2)
. . . . . .in relation to contracts, the operation of sections 2, 3 and 7 is subject to the exceptions made
by schedule 1.
(3)
In the case of both contract and tort, sections 2 to 7 apply (except where the contrary is stated in
section 6(4)) only to business liability, that is liability for breach of obligations or duties arising (a)
from things done or to be done by a person in the course of a business (whether his own
business or another’s); or
(b)
from the occupation of premises used for business purposes of the occupier;
and references to liability are to be read accordingly but liability of an occupier of premises for
breach of an obligation or duty towards a person obtaining access to the premises for
recreational or educational purposes, being liability for loss or damage suffered by reason of the
dangerous state of the premises, is not a business liability of the occupier unless granting that
person such access for the purposes concerned falls within the business purposes of the
occupier.
(4)
In relation to any breach of duty or obligation, it is immaterial for any purpose of this Part of this Act
whether the breach was inadvertent or intentional, or whether liability for it arises directly or
vicariously.
2.
Negligence liability
(1)
A person cannot by reference to any contract term or to a notice given to persons generally or to
particular persons exclude or restrict his liability for death or personal injury resulting from
negligence.
(2)
In the case of other loss or damage, a person cannot so exclude or restrict his liability for
negligence except in so far as the term or notice satisfies the requirement of reasonableness.
(3)
Where a contract term or notice purports to exclude or restrict liability for negligence a
person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary
acceptance of any risk.
(4)
This section does not apply to-
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(a)
a term in a consumer contract, or
(b)
a notice to the extent it is a consumer notice
(but see the provision made about such contracts in sections 62 and 65 of the Consumer Rights
Act 2015)
3.
Liability arising in contract
(1)
This section applies as between contracting parties where one of them deals on the other’s
written standard terms of business.
(2)
As against that party, the other cannot by reference to any contract term (a)
when himself in breach of contract, exclude or restrict any liability of his in respect of the
breach; or
(b)
claim to be entitled (i)
to render a contractual performance substantially different from that which was
reasonably expected of him, or
(ii)
in respect of the whole or any part of his contractual obligation, to render no
performance at all,
except in so far as (in any of the cases mentioned above in this subsection) the contract term
satisfies the requirement of reasonableness.
(3)
This section does not apply to a consumer contract (but see the provision made about such
contracts in section 62 of the Consumer Rights Act 2015)
*
*
*
LIABILITY ARISING FROM SALE OR SUPPLY OF GOODS
6.
Sale and hire-purchase
(1)
Liability for breach of the obligations arising from (a)
section 12 of the Sale of Goods Act 1979 (seller’s implied undertakings as to title, etc.);
(b)
section 8 of the Supply of Goods (Implied Terms) Act 1973 (the corresponding thing in
relation to hire-purchase)
cannot be excluded or restricted by reference to any contract term.
(1A) Liability for breach of the obligations arising from_
(a)
section 13, 14 or 15 of the 1979 Act ...;
cannot be excluded or restricted by reference to a contract term except in so far as the term
satisfies the requirement of reasonableness.
.
. .
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51
(4)
The liabilities referred to in this section are not only the business liabilities defined by section
1 (3), but include those arising under any contract of sale of goods or hire-purchase agreement.
(5)
This section does not apply to a consumer contract (but see the provision made about such
contracts in section 31 of the Consumer Rights Act 2015).
7.
Miscellaneous contracts under which goods pass
(1)
Where the possession or ownership of goods passes under or in pursuance of a contract not
governed by the law of sale of goods or hire-purchase, subsections (2) to (4) below apply as
regards the effect (if any) to be given to contract terms excluding or restricting liability for breach
of obligation arising by implication of law from the nature of the contract.
(1A) Liability in respect of the goods’ correspondence with description, or their quality or fitness for any
particular purpose cannot be excluded or restricted by reference to a contract term except in so
far as the term satisfies the requirement of reasonableness.
.
. .
(3A) Liability for breach of the obligations arising under section 2 of the Supply of Goods and
Services Act 1982 (implied terms about title etc. in certain contracts for the transfer of the
property in goods) cannot be excluded or restricted by reference to any such term.
.
. .
(4A) This section does not apply to a consumer contract (but see the provision made about such
contracts in section 31 of the Consumer Rights Act 2015).
*
*
*
EXPLANATORY PROVISIONS
11.
The “reasonableness” test
(1)
In relation to a contract term, the requirement of reasonableness for the purposes of this Part
of this Act, and section 3 of the Misrepresentation Act 1967 . . . . is that the term shall have been
a fair and reasonable one to be included having regard to the circumstances which were, or ought
reasonably to have been, known to or in the contemplation of the parties when the contract
was made.
(2)
In determining for the purposes of section 6 or 7 above whether a contract term satisfies the
requirement of reasonableness, regard shall be had in particular to the matters specified in
schedule 2 to this Act; but this subsection does not prevent the court or arbitrator from holding,
in accordance with any rule of law, that a term which purports to exclude or restrict any relevant
liability is not a term of the contract.
(3)
In relation to a notice (not being a notice having contractual effect), the requirement of
reasonableness under this Act is that it should be fair and reasonable to allow reliance on it,
having regard to all the circumstances obtaining when the liability arose or (but for the notice)
would have arisen.
(4)
Where by reference to a contract term or notice a person seeks to restrict liability to a
specified sum of money, and the question arises (under this or any other Act) whether the term
or notice satisfies the requirement of reasonableness, regard shall be had in particular (but
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The Law of Contract & Tort
without prejudice to subsection (2) above in the case of contract terms) to (a)
the resources which he could expect to be available to him for the purpose of meeting
the liability should it arise; and
(b)
how far it was open to him to cover himself by insurance.
(5)
It is for those claiming that a contract term or notice satisfied the requirement of
reasonableness to show that it does.
13.
Varieties of exemption clause
(1)
To the extent that this Part of this Act prevents the exclusion or restriction of any liability it also
prevents (a)
making the liability or its enforcement subject to restrictive or onerous conditions;
(b)
excluding or restricting any right or remedy in respect of the liability, or subjecting a person
to any prejudice in consequence of his pursuing any such right or remedy;
(c)
excluding or restricting rules of evidence or procedure;
and (to that extent) sections 2, 6 to 7 also prevent excluding or restricting liability by reference to
terms and notices which exclude or restrict the relevant obligation or duty.
(2)
But an agreement in writing to submit present or future differences to arbitration is not to be
treated under this Part of this Act as excluding or restricting any liability.
SCHEDULE 1
SCOPE OF SECTIONS 2, 3 AND 7
1.
Sections 2 and 3 of this Act do not extend to (a)
any contract of insurance (including a contract to pay an annuity on human life);
(b)
any contract so far as it relates to the creation or transfer of an interest in land, or to the
termination of such an interest, whether by extinction, merger, surrender, forfeiture or
otherwise;
(c)
any contract so far as it relates to the creation or transfer of a right or interest in
any patent, trade mark, copyright or design right, registered design, technical or
commercial information or other intellectual property, or relates to the termination
of any such right or interest;
(d)
any contract so far as it relates -
(e)
(i)
to the formation or dissolution of a company (which means any body corporate
or unincorporated association and includes a partnership), or
(ii)
to its constitution or the rights or obligations of its corporators or members;
any contract so far as it relates to the creation or transfer of securities or of any right or
interest in securities.
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53
2.
section 2 (1) extends to (a)
any contract of marine salvage or towage;
(b)
any charterparty of a ship or hovercraft; and
(c)
any contract for the carriage of goods by ship or hovercraft;
but subject to this sections 2, 3 and 7 do not extend to any such contract except.
3.
Where goods are carried by ship or hovercraft in pursuance of a contract which either (a)
specifies that as the means of carriage over part of the journey to be covered, or
(b)
makes no provision as to the means of carriage and does not exclude that means,
then sections 2(2) and 3 do not extend to the contract as it operates for and in relation to the
carriage of the goods by that means.
4.
Section 2 (1) and (2) do not extend to a contract of employment, except in favour of the
employee.
5.
Section 2 (1) does not affect the validity of any discharge and indemnity given by a person, on or in
connection with an award to him of compensation for pneumoconiosis attributable to
employment in the coal industry, in respect of any further claim arising from his contracting that
disease.
SCHEDULE 2
“GUIDELINES” FOR APPLICATION OF REASONABLENESS TEST
The matters to which regard is to be had in particular for the purposes of sections 6(1A),
7(1A) and (4) . . . are any of the following which appear to be relevant -
54
(a)
the strength of the bargaining positions of the parties relative to each other, taking
into account (among other things) alternative means by which the customer’s
requirements could have been met;
(b)
whether the customer received an inducement to agree to the term, or in accepting it had
an opportunity of entering into a similar contract with other persons, but without having
to accept a similar term;
(c)
whether the customer knew or ought reasonably to have known of the existence and
extent of the term (having regard, among other things, to any custom of the trade and
any previous course of dealing between the parties);
(d)
where the term excludes or restricts any relevant liability if some condition is not complied
with, whether it was reasonable at the time of the contract to expect that compliance with
that condition would be practicable;
(e)
whether the goods were manufactured, processed or adapted to the special order of the
customer.
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