There are no obligatory clauses that should be included into the text of the standard form contract, however, it is up to the parties to the agreement to decide which provisions should be included. With that, the clause 1 is the important one for the defining of the relations between the parties as it provides that only the text of the agreement and its provisions should be regarded as the main basis for the contractual relations between the parties. Meanwhile, the terms and conditions provided in the text of the contract have the primary meaning to every party as no other sources should take into account, while the freedom of the parties and the rights are limited to the text of the contract according to his clause.
Clause 1 is the important from the perspective of the interpretation of the further liability of the parties, delivery of the goods, sum of the payment for the goods, etc. In case the parties do not consider to include this clause into the contract, they should stipulate the law that will have the binding force over the activity of the parties in case the dispute arises. Otherwise, it would be a legal impediment for the court to ascertain the law to be applied for the consideration of the case. In addition, the court should take into account the limits of the parties autonomy in the drafting of the agreement.
With insertion of this clause into the text of the agreement, the parties gain the opportunity to establish the limits of the responsibility that may be applied under certain conditions. Meanwhile, this clause is not exclusive so that the parties to the contract depending on the nature of the good transferred, may establish the appropriate causes of the liability framework. Accordingly, this clause has the legal significance for the establishment of the compensation amount in case the seller or buyer were involved in the occurrence of the damages to the nature and quality of the goods supplied. Furthermore, the parties may define the terms when the goods should be replaced in case certain discrepancies in the appearance take place.
Furthermore, the inclusion of the clause 9 in the standard form contract is supported by the judgment in case Wilson v. Rickell Cockerel & Co. According to the decision, the freedom of the party covers the inclusion of the qualities of the goods that may be challenges in case of non-performance of the obligations under the agreement. Moreover, the issue of the packaging of the goods has the important role in the performance of the delivery in the adequate manner so that the other party may treat the goods as the satisfactory. In addition, the clause 9 is regarded as the exclusion clause, so that there are additional case law interpreting the meaning of the clause. For example, case Andrews Bros. v. Singer stipulates the framework for the construction of the exclusion clauses in the manner that allows to identify the intent of the parties to include this provision in the text of the agreement. Besides, due to the fact that clause 9 implies the conditions fro the exclusion of the liability, the identification of the type of the liability should be interpreted in accordance with the relevant case law: business liability (Stevenson v. Rogers case), negligence liability (Smith v. Eric Bush case), misrepresentation (Walker v. Boyle case).
According to the merits of the case, the representative of Evans Furniture, as the performing manager and the person acted on behalf of the Westway Office Equipment had no written contract between them. Regardless of the fact that the parties did not have the written contract, they have the oral agreement between them. On 5th December the Westway company sent the letter to the office of the Evans Furniture with the request to order the 60 desks, while on 6th December the manager of the company made a call to Evans Furniture and confirmed the will to purchase the abovementioned amount of the desks. In this respect, the manager of Evans From the perspective of the commercial law, the telephone call and the letter sent on behalf of the Westway company are covered by the notion of the commercial correspondence between the parties. In case the dispute arises between these two companies, from the perspective of the international commercial arbitration, the Westway company may present the evidence that they have concluded the contract with Evans Furniture to order and supply 60 desks of one type.
If the Westway Company and Evans Furniture have agreed to rely on Incoterms, then it quite important to ascertain which rules have been chosen. There are the following categories of the norms applied to the management of the quality of the goods in terms of the delivery: EXW, FCA, CPT, CIP, DAT, DAP, DDP.
However, in case the parties have not agreed on the particular rules to be applied, then the seller – Evans Furniture, should have transported the desks to the premises of the Westway Company where the manager have to check the quality of the goods. Otherwise, the abovementioned principles should apply under the basil pillars of the commercial law.
Besides, the transfer of the title in this case from the seller to the buyer should be based on the judgments found in the following cases: McCardie J in Hartley v. Hymans, Charles Rickards Ltd v. Oppenheim. These cases provide the interpretation of the actual delivery under the provisions of the contract and the moment for the transfer of the title from one party to the agreement to the other.
First, by loading the desks to the loading bay mean that the seller has performed his obligations with respect to the seller. In addition, due to the fact that Evans Furniture Ltd. had two requests upon the desks from two different companies, the delivery to the loading bay has the important role in the completion of the offer to the Westway company. Meanwhile, the clause 10 of the standard contract provides the force majeure events that remove the liability of the seller to compensate the buyer for the goods. These events cover the causes that take place irrespectively of the participation and intend of the seller. In general, they are the following: fire, flood, conflict, war, embargo, accident, etc. Due to the fact that fire belongs to this type of the events, the seller should not provide the Westway company with compensation refund for the non-delivery of the desks to the premises of the company. Moreover, the Evens Furniture should not bear the responsibility for this non-performance of the obligations. However, in case the parties could have agreed and provided into the text of the contract the other resolution of similar situation, the seller in form of Evans Furniture. Ltd. could be liable for the destruction of the desks at the loading bay. Accordingly, this type of the behavior may be treated as the form of non-compliance with the obligations under the terms of the agreement in case the parties have stipulated about it.
For the purposes of the consideration, the issue of the non-delivery has been considered by the courts in the following cases: Underwood Ltd v. Burgh Castle Brick and Cement Syndicate, Philip Head & Sons Limited v. Showfronts Limited.
In order to response to this question, it is highly important to refer to the provisions of the section 18 of the Sales of Goods Act of 1979. Under the provisions of this chapter of the legal act, the parties should agree upon the time suitable for the transfer of the title from seller to buyer. Given the fact, that the Higgins Company and the Evans Furniture Ltd. had no written contract between them, the parties should rely on the rule 5 stipulated in this section. Under this provision, the 40 desks should be treated as the part of the bulk that had to be of 100 desks delivered. Besides, the Higgins company was not the only one buyer of the desks made by Evans Furniture Ltd. Westway company was the first business entity that requested to complete the sale and purchase operation of 60 desks. Due to the fire, the desks submitted have been destroyed, while the obligations still should be fulfilled as Westway company was the first client to take the offer. Thus, regardless of the delivery of 40 desks to the premises of the Higgins office, the title of the property should belong to the Westway company based on the request to purchase 60 desks dated from 5th December.
Accordingly, the issue of the transfer of the possession of the goods have been considered in the appropriate cases, such as the following: Niblett v. Confectioners' Materials Co. Ltd. Case, Butterworth v. Kingsway Motors Ltd. Case.
Initially, it should be said that the under the provisions of the Sales of Goods Act of 1979, there is a direct obligation of the seller to provide the buyer with the goods of the satisfactory and adequate quality. Besides, it is quite important to define which goods may fall within the scope of the notion of the satisfactory quality. The Sales of Goods Act of 1979 stipulates that the goods should meet the standards of the quality that any reasonable person will treat as the appropriate. Therefore, the parties should be guided by the provisions of the Section 14 of the Act. In addition, it is necessary to state, that the issue of the compensation in relation to the occurred damages were considered by the court in the case Hong Fok Realty Pte Ltd v. Bima Investment Pte Ltd. According to the judgment upon the case, the ascertainment of the damages should base on the issue of the cause and effect relation between the loss and the damage. In this respect, the Higgins company should present the evidence of the loss due to the actions of the seller before the court. Meanwhile, the case Victoria Laundry (Windsor) Ltd v. Newman Industries Ltd. has the important meaning in the consideration of the damages under the provisions of the contract. The compensation of the damages is possible in case any party has failed to comply with the obligations under the text of the agreement, as the other party can be regarded as liable on this breach if the defendant could foresee this liability.
The issue of the calculation of the damages is provided in the Section 50, 51 of the Sales of Goods Act of 1979. In this regard, the perspective of the measure of the damages should be calculated in relation to the direct loss of the goods that cause the forthcoming violation of the provisions of the contract. Due to the fact that the Westway company has entered the sub-sale agreement with the respective company, the provisions in this contract should be evaluated. If the parties have agreed upon the advance payment for the desks, then the Westway company should return this payment for the business unit ordering the desks. Meanwhile, the event in form of fire should be considered as this non-performance of the obligations did not rely on the activity of the Westway company. Besides, the article 3 of the Section 51 of the Sales of Goods Act envisages that the damages should be calculated based on the price for the good in question available in the respective market. Therefore, the difference between the price identified in the contract and the market price should be taken into account in order to define the measure of the compensation for the non-compliance of the provisions of the agreement.
Furthermore, the case Victoria Laundry (Windsor) Ltd v Newman Industries Ltd stipulates the issue of the calculation the damages pertaining to the loss of the profit on behalf of the company. Therefore, the issue of the economic loss should be considered in addition to the examination of the existence of the physical loss made on behalf of the party. In addition, the issue of the remoteness of the damage should be taken into account through the calculation of the damages. Furthemore, the gap between the prices and the method for its calculation is provided in case Barrow v. Arnaud. The plaintiff should buy the equivalent goods in the market of the realization of the good in issue and present it to the court for the appropriate calculation of the damanges and amount of the compensation sum. Furthemore, the case Bulsing Ltd. V Joon Seng & Co stipulates the intepretation of Section 50 of the Sales of Goods Act of 1979. The plaintiff should put himself in the position in case the contract will be completed in full.
The option to submit the claim to the seller with regard to the quality of the good or any other issues that pose the unsatisfactory view is stipulated by the Consumer Rights Act of 2015. In accordance with this legal instrument, the consumer has the power to submit the claim before the expiration of deadline of 30 days since the purchase of the good. Therefore, if the complaints as to the quality of the desks have been received upon the elapse of 30 days, the Evans Furniture should not provide the consumers with the compensation of the quality of the goods. In case, these complains have been received earlier, the representatives of the Evans Furniture should replace the handles at the desks and repair other discrepancies in the appearance of the desks. In addition, the additional reasonable deadline may be established by the seller for the protection of the consumer rights in order to repair or replace the goods at the cost paid on behalf of the seller. This activity may take place in case both parties are satisfied with the proposed solution for the fixation of the appearance of the good. The issue of the quality has been considered by the Court in case KG Bominflot Bunkergesellschaft Für Mineralöle mbh & Co KG -v- Petroplus Marketing AG, the buyer should have the goods of satisfactory quality upon certain elapse of the resonable period of time from the date of the delivery of the goods.
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