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Commercial Law (LAW318) Semester 1 Lecture Notes
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Full lecture notes for Commercial Law (LAW318) - Semester 1. Includes cases, judicial opinion and academic commentary.
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Commercial LawTopic Video Title Completed?
The Concept The Concept of a From the Law Marchant to the Yes
of a Sale of Sale and the Dual Consumer Rights Act
Goods Statutory The Concept of a Sale of Goods Yes
Framework Contract
Developing Your What are goods? Yes
Understanding of Which Act Applies? Yes
the Statutory Variants of Sale of Goods Yes
Framework Contracts and Doppelgangers
Statutory Statutory Terms Introduction to Statutory Terms Yes
Terms in the Introduction
Sale of The Right to Sell The Right to Sell I Yes
Goods The Right to Sell II Yes
Sale by Description Description I Yes
Description II Yes
Satisfactory Satisfactory Quality I Yes
Quality Satisfactory Quality II Yes
Satisfactory Quality III Yes
Fitness for Purpose Fitness for Purpose Yes
Demarcating the Demarcating the Terms Yes
Terms
Property, An introduction to How does the SGA address the Yes
Risk and Title the passing of passing of property
property
Fundamental Specific goods Yes
issues around the The Primacy of Contractual Yes
passing of Intention
property
The Passing of The Passing of Property in Yes
Property in Unascertained Goods I
Unascertained The Passing of Property in Yes
Goods Unascertained Goods II
The Passing of Risk The Passing of Risk Yes
Solving Nemo Dat Solving Sale by a Non-Owner Yes
Problem Questions Problems
The Law of Introduction to the Introduction to the Law of Yes
Agency Law of Agency Agency
Actual Authority Actual Express and Actual Yes
Implied Authority
Apparent Apparent Authority of an Yes
Authority Agency
A stand-alone Usual Authority and Watteau v Yes
concept of usual Fenwick
, authority?
Breach of Warrant Breach of Warrant of Authority Yes
of Authority
Duties of Agent Rights of an Agent Yes
and Principle Duties of an Agent Yes
Contracts made by The Doctrine of the Undisclosed Yes
agents Principle
The Concept of a Sale of Goods
From the Law Marchant to the Consumer Rights Act
Development of the law of the Sale of Goods
- Dual statutory framework
o Consumer rights Act 2015
o Sale of Goods Act 1979
- Historical Development and the Immediate Future
o Originally grounded in the Law Merchant and English Common Law
o Codified by SGA 1893
Any equitable basis for commercial law was swept aside
Ownership when the goods are part of a larger bulk
Buyer was left as unsecured creditor for the larger bulk (Re
Wait)
Main substance has remained the same since then
o Revised by SGA 1979
o Incremental reforms after
Took a different approach
Made judgement and distinctions based on the state of the
parties
o Was the buyer buying as a consumer?
Employment or business purposes, or as a real
consumer?
S15(a) – post 79, pre 15 changes
Led to a fragmented framework
o Difficult for non-lawyers
o Consumer Rights Act 2015
Aimed to carve out the consumer-specific parts of SGA and put it in its
own thing
However it is not one or the other when applying it
Driving aim of simplification
Changed from legalistic to an easier to understand format
Much broader scope than the SGA
Part one: consumer contracts for goods, digital content and
services
Part two: unfair terms
Part three: miscellaneous e.g. competition, enforcement
, Incorporated certain aspects of the Consumer Rights Directive
(Directive 2011/83/EU) which hadn’t been fully incorporated by other
legislation
- Compare the SGA regime with the CRA regime
The Concept of a Sale of Goods Contract
- 2 core gateway provisions
o Through which a contract must pass through the statutes to apply
- CRA
o Part 1
Section 3 is where the specific approach comes in
3(1)
Applies to a contract for a trader to supply goods to a
consumer
3(2)
It applies only if the contact is one of these
o (a) a sales contract
o (b) a contract for the hire of goods
o (c) a hire-purchase agreement
o (d) a contract for transfer of goods
o Consumer – NOT a company
- What is a ‘sales contract’?
o s.5 CRA 2015
(1) a contract is a sales contract if under it –
(a) the trader transfers or agrees to transfer ownership of
goods to the consumer, and
(b) the consumer pays or agrees to pay the price
(2) a contract is a sales contract (whether or not it would be one
under subsection (1) if under the contract –
(a) goods are to be manufactured or produced and the trader
agrees to supply them to the consumer,
(b) on being supplied, the goods will be owned by the
consumer, and
(c) the consumer pays or agrees to pay the price
o Promise to pay is valid consideration (s5(2)(c))
o Summary:
Transfer of ownership
Within goods
Money consideration
Provided it’s within the ambit of the CRA
Trader supplying to consumer
- What is a sale of goods?
, o S2(1) SGA defines as: “a contract whereby the seller transfers or agrees to
transfer the property in the goods to the buyer for a money consideration,
called the price”
Property
Goods
Money consideration
- Here, property and ownership means the same thing
o Laymen think that ‘property’ means ‘things’, rather than ownership
- SGA is not concerned with the status of the parties
- Goods – things that have a physical
What are goods?
The definition of goods:
- SGA 1979, s.61(1)
o “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 of under the contract of sale (and includes an undivided
share in goods)
- CRA 2015, s.2(8)
o “goods” means any tangible moveable items, but that includes water, gas
and electricity if an only if they are put up for supply if and only if they are
put up for supply in a limited volume or set quantity
(e.g. a bottle of gas)
- Similar
o Reference to tangibility
Need a physical thing
o Difficulty with software and downloads where there is no physical medium
Has created a whole new thing related to digital goods rather than
physical products
Which Act Applies?
Fundamental distinctions:
- Both deal w sale of goods but use different terminology
o SGA s.2(1) – seller/buyer
o CRA s.5(1) – trader/consumer
- Contracts made on or after 1st October 2015 – could be governed by CRA
o Only where a supply contract is between a trader and a consumer (see s.2
CRA)
Looking for the status of the parties
Trader and consumer is really too vague
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