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Ucta, Sale Of Goods Act & Clauses

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zctlbd5
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I have the following problem which I hope somebody can help me to solve;

X is a cartoon super hero enthusiast and purchases a doll which comes with face paint and voice activation parts, through the internet and as has previously purchased items before from the site, doesn't tick the terms and conditions box which appears.

When the doll arrived, the paint had spilt over the doll and on his hands, which he tried to lick off and became ill meaning that he had to miss a days work therefore having a loss of earning, and the voice activation parts were missing.

X wants to claim loss of earnings and breach of contract for failing to supply voice activation parts. Company refuses to pay as had the following clause in terms & conditions;

"company does not accept liabilty for loss or damage however caused to persons or property"

What should X do?

Thanks

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I don't see why the illness has anything to do with the fact that the product was incomplete. If the product description and what X agreed to buy was not in fact what X received, then he clearly has been shorted and the company should provide the complete product.

The fact that X decided to lick paint is not the fault of the company, and not in line with common sense. Under the agreement, the company has no liability. You say that X did not "sign" the user agreement, but I don't see how a company would allow a sale without getting the customer to sign the user agreement. That makes this scenario somewhat artificial. But even if it were true, the lack of an agreement absolving the company from liabiliity for X's mishaps does not automatically mean that they should be liable. After all, they did nothing to force X to eat paint.

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So he wouldn't be able to sue for loss of earnings, but what about sueing for breach of contract for not supplying the voice activation part?
By "comes with" I assume you mean "was represented by the vendor as coming with" -- the question is whether this is a warranty of merchantability issue. Is there an "as is" declaration? Is it sold as a used superhero doll or a new doll? Assuming no disclaimer or other information that would imply "this may not have a voice activation unit", and if it is impied that there is one, then there is a breach.
Also I am having some trouble understanding whether section 5 of the Unfair Contract Terms Act 1977 would apply here.
Section 5:(1) In the case of goods of a type ordinarily supplied for private use or consumption, where loss or damage—

  • [a] arises from the goods proving defective while in consumer use; and
  • results from the negligence of a person concerned in the manufacture or distribution of the goods,

liability for the loss or damage cannot be excluded or restricted by reference to any contract term or notice contained in or operating by reference to a guarantee of the goods.

etc. But liability is still depending on the seller's negligence and the lack of contributory negligence on the buyer's part. It's hard to say whether the seller was negligent, but the buyer was certainly negligent, so no free lunch.

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zctlbd5, if this is a school problem then please end me an e-mail if you want useful-for-school-help - if you turn in an assignment with the logic and conclusions stated here then you will get a very low grade. Saying the buyer was certainly negligent could get you an F with some professors. There are enough facts to make a good argument on either side but it isn't a quick 5-minute-read-then-post-an-answer analysis unless you are really solid in your law (which I'm not but I know better than to come to quick conclusions!).

For those who haven't gone to law school, please be aware that professors expect the students to be able to work the facts to make an argument for whatever side they are on (and often strongly for both sides with the same facts). This problem looks like a classic law school problem with each fact carefully chosen to raise issues that help one side or the other. So, you can make a strong argument for the buyer and the seller with these facts.

- Keith

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For those who haven't gone to law school, please be aware that professors expect the students to be able to work the facts to make an argument for whatever side they are on (and often strongly for both sides with the same facts).
I would like to emphasize how remarkably stupid it would be to ever take opinions posted here as trained legal advice. The purpose of this board is to discuss Objectivism, one aspect of which would be legal philosophy. Vast amounts of law as it exists is utterly vile, but it is what it is. As a law student, if you are one, your primary purpose has to be to learn what the law is, which means absorbing huge amounts of existing legal finding. An actual reasonable man would deny any responsibility on the seller's part for consequences of the buyer's actions of licking the paint. However, the law is full of unreasonable men with particular axes to grind, such as the presumption that businesses are inherently evil and shoulder a special burden to prove their right to exist. The literature on the legal concept of "negligence" is very extensive -- the classical chain from Dixon v. Bell up to MacPherson v. Buick described by Levi is 100 pages long, and that's just the trivial stuff. It's also full of huge amounts of twisted and fundamentally wrong reasoning, but it is the law. This latter part is what we would address here -- the normative question, not the descriptive question.
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ha ha, okay, if a person wants to fail law school then go along with what DavidOdden said about what an "actual reasonable person" would do. Otherwise, I would recommend being very aggressive about working the facts to make coherent legal arguments for both sides.

Fwiw, dropping cases names is like dropping celebrity names - not very impressive.

- Keith

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