Consumer and Commercial Law

284 Pages·2016·4.397 MB·English

by  Kudith Tillson

Consumer and
CommerCial law
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Consumer
and
CommerCial
law
4th edition
Judith Tillson, Barrister
Senior Lecturer in Contract and Commercial Law
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Pearson Education Limited
Edinburgh Gate
Harlow CM20 2JE
United Kingdom
Tel: [phone]
Web: www.pearson.com/uk
First published 2011 (print)
Second edition published 2013 (print and electronic)
Third edition published 2015 (print and electronic)
Fourth edition published 2016 (print and electronic)
© Pearson Education Limited 2011 (print)
© Pearson Education Limited 2013, 2015, 2016 (print and electronic)
The right of Judith Tillson to be identified as author of this work has been asserted by her in accordance with the
Copyright, Designs and Patents Act 1988.
The print publication is protected by copyright. Prior to any prohibited reproduction, storage in a retrieval system,
distribution or transmission in any form or by any means, electronic, mechanical, recording or otherwise, permission
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not vest in the author or publisher any trademark ownership rights in such trademarks, nor does the use of such
trademarks imply any affiliation with or endorsement of this book by such owners.
Contains public sector information licensed under the Open Government Licence (OGL) v3.0.
www.nationalarchives.gov.uk/doc/open-government-licence.
Pearson Education is not responsible for the content of third-party internet sites.
ISBN: 978-1-292-08697-2 (print)
978-1-292-08702-3 (PDF)
978-1-292-08701-6 (ePub)
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British Library Cataloguing-in-Publication Data
A catalogue record for the print edition is available from the British Library
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NOTE THAT ANY PAGE CROSS REFERENCES REFER TO THE PRINT EDITION
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Contents
Acknowledgements vii
Introduction viii
Guided tour xii
Table of cases and statutes xiv
Chapter 1: The need for consumer protection 1
Chapter 2: Contract terms 17
Chapter 3: Sale and supply of goods 1: Implied terms 41
Chapter 4: S ale and supply of goods 2: Transfer of property
and risk 71
Chapter 5: S ale and supply of goods 3: Performance
and remedies 87
Chapter 6: Distance selling and electronic commerce 111
Chapter 7: Product liability 127
Chapter 8: Product safety 143
Chapter 9: Consumer credit 157
Chapter 10: Agency law 181
Chapter 11: Liability for unfair trading practices 205
And finally, before the exam … 227
Glossary of terms 245
Index 251
v
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Acknowledgements
Our thanks go to all reviewers who contributed to the development of this text, including
students who participated in research and focus groups which helped to shape the series
format.
vii
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Introduction
Many students study consumer and commercial law as discrete modules. Some students
may study one rather than the other. However, this book treats them as complementary
topics by examining areas common to both. Consumer and commercial law covers a wide
range of subjects so module content will vary between institutions, but several topics will be
common features, including sale of goods, agency law, credit, product liability, product safety
and unfair trading practices. Because of the increasing influence of online contracts and
distance selling, you are likely to be expected to appreciate the legal challenges presented
by this mode of contracting. No doubt individual lecturers will emphasise particular topics in
this diverse area. You should always refer to your lecturer or tutor and your course materials
with any questions on what you will be expected to cover.
Another factor to bear in mind in preparing for the exam is that, inevitably, several topics will
overlap and cannot be revised as discrete units. It is important to appreciate that studying
consumer and commercial law will require that you have a sound basis in contract law,
especially misrepresentation, unfair contract terms and remedies for breach.
The subject lends itself to problem questions which provide an opportunity for the examiner
to assess your understanding of how different aspects of consumer and commercial law
interlink. Don’t be surprised to find that a problem on a topic such as product liability may
also encompass aspects of sale of goods, negligence and privity. Likewise, questions calling
for an analysis of unfair contract terms will expect you to be able to demonstrate detailed
knowledge of aspects of sale of goods, misrepresentation and the supply of services. You
will be expected to show clear understanding of the degree of statutory protection offered to
those dealing on a commercial as well as consumer basis. When dealing with such multi-
faceted problem questions, it is easy to digress into areas that are not relevant; it is also
difficult to gauge which areas require a greater level of detailed analysis. Some questions
may help you in this respect by allocating marks to different sections. The most difficult
problems are those that include a range of issues within one detailed scenario. Always devise
an outline plan to ensure that you deal with all relevant issues in a systematic and structured
manner. It is a good idea to identify an issue, explain it and then apply it to the facts given.
With essay questions you should ensure that you understand what the question requires
before outlining your plan. Essay questions tend to expose those who have a superficial
viii
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INTRODUCTION
understanding of a topic, as they call for detailed explanation of legal principles with
application of case law and statute as well as critical comment. You will be expected to be
able to highlight areas for criticism and potential reforms. You may be required to address a
specific reform and carry out an evaluation, using recent authority, as to whether or not it is
effective. A likely example would be the recent reform of the area of unfair trading practices.
Keep to the issue by referring to the question and submitting suitable comment (based on
your evaluation) where appropriate. Whether you are analysing a problem or writing an
essay, make sure that you submit a conclusion.
This book is designed as a revision guide, not as a substitute for a textbook or your course
notes. In order to promote quick understanding and effective revision, it gives you a
clear overview of key topics in consumer and commercial law. It also provides a guide to
suitable resources to develop a critical approach to examinations and assignments. The
book focuses on common areas of misunderstanding and confusion, such as concepts
of consumer status, the different heads of liability in product liability and the difference
between sale by description and misrepresentation. In order to help you develop a confident
attitude towards examinations, guidance is given in each chapter with regard to revision
and exam tips, pointing out difficult areas and suggesting good approaches to a range of
sample questions.
Finally, it is important that you are aware of progress on the implementation of the European
Directive on Consumer Rights. The Directive merges four existing EU Consumer Directives,
namely: Sale of Consumer Goods and Guarantees (99/44/EC), Unfair Contract Terms (93/13/
EEC), Distance Selling (97/7/EC) and Doorstep Selling (85/577/EEC). By means of a process
of codification, the law in these areas will eventually be updated to reflect technological
changes in commerce and to try to overcome common problems with distance selling. With
these aims in mind the Consumer Rights Bill was introduced into Parliament in June 2013
and resulted in the introduction of the Consumer Contracts (Information, Cancellation and
Additional Charges) Regulations, the Consumer Protection (Amendment) Regulations 2014
and the Consumer Rights Act 2015 which aim to clarify and consolidate legislation covering
distance and doorstep selling, rights of redress for victims of unfair trading practices, the
sale and supply of goods (including digital content), unfair contract terms and powers of
enforcement. Naturally there will be some inevitable overlap between the new reforms and
existing legislation. The table below is designed to clarify the effects the Consumer Rights
Act 2015 will have on existing legislation.
Effect of the CRA 2015 on existing legislation
The provisions in the existing legislation listed in Table 0.1, which cover B2C (business-
to-consumer) contracts only, will be repealed. The provisions that relate to other types
of contract (for example, contracts between businesses) will remain in the existing
legislation.
ix
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