Assignment Sample on Consumer and Commercial Law
Introduction
The assignment incorporates an understanding of the principles and practice of Commercial and Consumer Law in the UK. A case has been served for a detailed analysis where a consumer (Andrews) goes in contract with a trader (Onlineshopping.com) to purchase software developed by Hartronics plc. Thus, the need arises to classify the validity of each party’s claims and the intricacies of the various ingredients of contract concerning the legal statutes relevant to the case. The paper will focus on analysis of the validity of claims and different remedies available to Andrews in the context of the statutes in the UK concerning Commercial and Consumer law.
Discussion
Breach of contract for the text-processing software and identification of remedies
Contract
An agreement between two parties that agree to trade among themselves, and which can be enforced by law, is known as a “Contract”. Thus, the two parties involved in a contract may be termed as the consumer and the trader.
In the current case, Andrews has entered into a contract with Onlineshopping.com to buy and use a product that Onlineshopping.com provided for sale and thus, here, Andrews may be termed as the consumer, whereas Onlineshopping.com is referred to as the trader.
Andrews had purchased a software developed by Hartronics plc. However, since the webpage of Onlineshopping.com had displayed the trade deals, and Onlineshopping.com was the final supplier, Onlineshopping.com will be liable to be taken as the trader here. This is a case of a Mixed contract, and Onlineshopping.com has acted as the supplier for the said contract. Furthermore, Onlineshopping.com has entered into a mixed contract with Andrews since the trader has instigated two different contracts to be undertaken[1]. The first contract which Andrews had intended to enter was regarding the purchase of the software by Hartronics plc. However, along with the said contract, Onlineshopping.com has instigated a contract between Onlineshopping.com and Andrews for a monthly subscription of a digital magazine through its Conditions of use. Thus, Onlineshopping.com has actually entered into a mixed contract and therefore, both – the contracts entered and their respective repercussions and various provisions available under the law will be discussed in detail below.
Presence of breach of contract
Since the product was praised for its durability and crash-resistance on the website, which was not the case in reality with Andrew when he bought the product and used it, there stands to be a misrepresentation of the product features on the website[2]. This is the main ground where the breach of contract was committed.
Statutory rights not met.
Under the legal parameters of section 34 of the “Consumer Rights Act, 2015”, a consumer has the “right” to receive the digital content or product with a reasonable expectation of satisfaction from the product’s use[3].
Thus, on the grounds of section 34 and its clauses, the supplier has failed to deliver the digital content with reasonable satisfaction to Andrews concerning its description of the product on the website [Section 34,(2)(a)]. Further, clauses (b), (c) and (d) of the subsection (3) of section 34 about reasonable satisfaction of the digital content are also violated, which are, namely; “freedom from minor defects”, “safety of the use of the product” and “durability of the product”, respectively[4].
Thus, it is clear that the supplier (Onlineshopping.com) has violated the conditions of a valid contract under legal parameters of the “Consumer Rights Act, 2015”.
Remedies for breach:
Thus, as per the legal provisions of the “Consumer Rights Act, 2015”, Andrews would be entitled to remedies for contract’s breach and thus consequently, the breach of his statutory rights to the said contract by its suppliers. The remedies are discussed below.
Sections 42 through 45 of the Consumer Rights Act, 2015 illustrate the remedies available to a consumer in the event of a statutory right being violated. In the case of Andrews, since Onlnieshopping.com has claimed that they are not the developers, the right to repair or replacement of the type-setting software under section 43 cannot be applied[5]. Similarly, since the software itself cannot be efficiently used further, the right to a reduction of price under section 44 does not arise. The remedy available to Andrews in this scenario is the right to a refund prescribed under section 45 of the Consumer Rights Act, 2015.
Further, the rule of the principles coming out of the verdict in case of Haxley vs Baxendale, (1854) regarding the remedies should be applicable here. The case was resolved with a verdict that “only losses which are within the reasonable contemplation of the parties may be recovered.[6]”
Validity of the Terms and Conditions of the contract
While Andrews proceeded to buy the software, it should be noted that the website did say that there is a Terms and Conditions clause and that the buyer must read them and agree to it before placing an order. However, in the case of Andrews, when he proceeded to read the “Terms and Conditions” that popped-up, he was taken to a separate window, though it was completely blank. Thus, the provisions of “The Consumer contracts (Information, Cancellation and Additional Charges) Regulations 2013” are violated.
Section 8 of the said Regulations says that only if a consumer knows how to access something can only be understood to have been delivered to the consumer.
Further, Section 13 (2) of the same Regulations say that if an information has to be delivered to the consumer before making a distant contract (online contract in this case as Andrews and Onlineshopping.com is distant from each other), then they said information must be provided in a “DURABLE” medium, and it must be “LEGIBLE”.
Thus, from the case scenarios, the trader’s Terms and Conditions page was blank, and it can be said that it was not LEGIBLE to the consumer. Thus, information was not conveyed to the consumer. Further, the conditions were not conducive for the consumer to have acted in ‘good faith’ and have entered the contract with the intention of best mutual benefit[7].
Thus, the “Terms and Conditions” of the agreement to sell and eventually use the software were not conveyed to the consumer in the website; and though Andrews did agree to the terms by clicking on the “I agree” link, the same was not done with Andrew’s full and fair consent. Without the information regarding the agreement’s “Terms and Conditions” and their clauses being conveyed clearly to Andrews, it cannot constitute a consent to be ‘free and fair’ to agree upon the clauses. Thus, the validity of the Terms and Conditions and its application in the consumer’s purchase agreement is not established. This constitutes a breach of the contract on the part of the trader.
In this case, Andrews’s rights to the contract termination and for a refund are stated in “the Consumer Rights Act, 2015” under the provisions of its sections 42 and 45[8]. However, as differed from the earlier discussion, the “right to repair” of the goods and the “right of a claim of reduction in prices” cannot apply, since the contract itself did not constitute to have been carried out in good faith. Further, Andrews is also entitled to claim damages for the contract’s breach. However, since the said case did not specify any damage to the already existing document, information or file which was present in Andrew’s computer, it can be said that the software, though faulty of its own use, did not cause any extra damage outside of its operations to Andrews’s computer or its files. Thus, taking into account all the above considerations, Andrews can in this case, claim for a refund of the sale amount of £34.95.
Conditions of Use on the website of Onlineshopping.com and its repercussions
In the case of Andrews, it can be noted that while entering into the contract to purchase software from the website of Onlineshopping.com, a pop-up window appeared which had a Conditions of Use of the website of Onlineshopping.com. Andrews had ignored the pop-up message and continued with the purchase of the software. Though the Terms and Conditions and Conditions of Use seem significantly similar, in reality, they are not. Conditions of Use applies to any user of the website who is using the website as against the Terms and Conditions, which refers to a particular agreement or contract entered between the parties to the said contract.
Thus, it can be concluded that Conditions of Use of Onlineshopping.com, which Andrews did not read, is significantly different in nature and application to the Terms and Conditions of the sale of the software, which eventually Andrews did not get to read[9].
Though, at initial glance, it appears to be suspicious of a misrepresentation on the part of Onlineshopping.com to have introduced such a clause, however, close examination of the case points out the following.
Section 14 of the “Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013”, lays down the “requirements for a distant contract concluded by electronic means”[10]. The provision of the law here has mentioned that if a contract has placed a consumer an “Obligation to Pay”, the trader must make the consumer aware of such an obligation “in a clear and prominent manner”.
The nature of a pop up as a means to communicate the user of an obligation to may does not amount to be a manner that is prominent and clear. Furthermore, the subsequent clauses of the same provision make it clear that a trader must ensure that when a consumer is placing an order, the consumer ‘KNOWS’ that there exists an obligation to pay. [Section 14 (3)][11]. In this case, Andrews was not aware of his obligation to pay if he used the website Onlineshopping.com to purchase the software.
Also, the clauses of subsection 4 of the same provision were seemingly violated. The final payment button should have been labelled with the words “Obligation to Pay” or its “corresponding unambiguous formulation“, which should indicate that proceeding with the order obligates the person to pay. Here, the nature of correspondence of the Obligation of Andrews to pay on the part of Onlineshopping.com does seem very much an ambiguous act. A pop-up cannot constitute a clear and unambiguous formulation of the correspondence of the “Obligation to pay”[12].
Thus, the validity of the Conditions of Use stands to be held under contest. The remedies thus available to Andrews would be an immediate refund (reimbursement) of the subscription amount for the magazine of Onlineshopping.com. The provisions of Section 34 of the “Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013” apply in this case.
Furthermore, the provisions stipulate a timeframe of 14 days for the trader (Onlineshopping.com) to make such reimbursement[13]. All the further subscriptions of Andrews as far as this contract is concerned would cease to exist and no additional payments of the subscription would be due. Andrews, on his part, should return the magazines thus delivered.
Conclusion
It can be concluded that the current assignment had focused on dealing with a number of scenarios that Andrews had to face due to a purchase transaction carried on by him, along with their subsequent consequences. The various statutes and laws governing each of such scenarios, and the results were discussed. The provisions of the “Consumer Rights Act, 2015” and “Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013” were discussed in particular to have been applied in these scenarios. The validity of various scenarios in the eyes of law, and their corresponding remedies from the purview of Andrews were discussed.
An analysis of the very nature of the contract and its breach, whether conducted or not was undergone with respect to the relevant statutes of the law. The analysis of the validity of the Terms and Conditions for the sale of software and the Conditions of Use of the website of Onlineshopping.com, were clearly explained, with regard to the different provisions of the relevant law in each case. Along with it, the different available remedies available to Andrews in each case were also discussed and explained. However, a lack of knowledge and a tendency to mislead, misrepresent and indulge in the coercive transaction is seen in both the parties.
Thus, a landmark case of Donoghue v Stevenson is cited here for reference, in which the honourable court has held the need to increase the consumer rights and consumer confidence[14].
Reference list
(Lexisnexis.com, 2021) <https://www.lexisnexis.com/uk/lexispsl/disputeresolution/document/393747/5CK4-1SG1-F18B-703K-00000-00/Contractual_breach_damages_and_remedies_overview> accessed 9 November 2021
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Ghapa, Norhasliza, and Nor Aida Ab Kadir. “Information Regulation: A Measure of Consumer Protection.” Pertanika Journal of Social Sciences & Humanities 29 (2021).
He, Qihao, and Chun-Yuan Chen. “Insurance Law between Commercial Law and Consumer Law: Can the United States Inspire China in Insurance Misrepresentation.” Conn. Ins. LJ 26 (2019): 145.
KHALIL, RAED AHMED. “LEGAL PROTECTION OF CONSUMER RIGHTS IN AIR TRANSPORT SECTOR IN IRAQ.”
Steinbrück, Katharina. “Changing Consumer Law in the United Kingdom after Brexit?.” (2021).
‘Supply Of Services – Your Consumer Rights’ (Hants.gov.uk, 2021) <https://www.hants.gov.uk/business/tradingstandards/consumeradvice/goodsandservices/servicesrights> accessed 9 November 2021
‘The Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013’ (Legislation.gov.uk, 2021) <https://www.legislation.gov.uk/uksi/2013/3134/contents/made> accessed 9 November 2021
Willett, Chris. “Re-theorising consumer law.” The Cambridge Law Journal 77, no. 1 (2018): 179-210.
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[1] Willett, Chris. “Re-theorising consumer law.” The Cambridge Law Journal 77, no. 1 (2018): 179-210.
[2] Steinbrück, Katharina. “Changing Consumer Law in the United Kingdom after Brexit?.” (2021).
[3] ‘Breach Of Contract Law: Claims, Consequences & Remedies: London Solicitors’ (Hallellis.co.uk, 2021) <https://hallellis.co.uk/breach-contract-meaning/> accessed 9 November 2021
[4] Willett, Chris. “Re-theorising consumer law.” The Cambridge Law Journal 77, no. 1 (2018): 179-210.
[5] (Lexisnexis.com, 2021) <https://www.lexisnexis.com/uk/lexispsl/disputeresolution/document/393747/5CK4-1SG1-F18B-703K-00000-00/Contractual_breach_damages_and_remedies_overview> accessed 9 November 2021
[6] ‘Remedies For Breach Of Contract | Practical Law’ (Practical Law, 2021) <https://uk.practicallaw.thomsonreuters.com/7-101-0603?transitionType=Default&contextData=(sc.Default)&firstPage=true> accessed 9 November 2021
[7] (Lexisnexis.com, 2021) <https://www.lexisnexis.com/uk/lexispsl/disputeresolution/document/393747/5CK4-1SG1-F18B-703K-00000-00/Contractual_breach_damages_and_remedies_overview> accessed 9 November 2021
[8] ‘Supply Of Services – Your Consumer Rights’ (Hants.gov.uk, 2021) <https://www.hants.gov.uk/business/tradingstandards/consumeradvice/goodsandservices/servicesrights> accessed 9 November 2021
[9] KHALIL, RAED AHMED. “LEGAL PROTECTION OF CONSUMER RIGHTS IN AIR TRANSPORT SECTOR IN IRAQ.”
[10] ‘The Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013’ (Legislation.gov.uk, 2021) <https://www.legislation.gov.uk/uksi/2013/3134/contents/made> accessed 9 November 2021
[11] He, Qihao, and Chun-Yuan Chen. “Insurance Law between Commercial Law and Consumer Law: Can the United States Inspire China in Insurance Misrepresentation.” Conn. Ins. LJ 26 (2019): 145.
[12] Conklin, Kathy, Richard Hyde, and Fabio Parente. “Assessing plain and intelligible language in the Consumer Rights Act: a role for reading scores?.” Legal Studies 39, no. 3 (2019): 378-397.
[13] Ghapa, Norhasliza, and Nor Aida Ab Kadir. “Information Regulation: A Measure of Consumer Protection.” Pertanika Journal of Social Sciences & Humanities 29 (2021).
[14] ‘Consumer Rights Act 2015′ (Lawteacher.net, 2021) <https://www.lawteacher.net/acts/consumer-rights-act-2015.php> accessed 9 November 2021
