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Where a consumer has entered into a hire agreement for goods which includes a service plan for ongoing repairs, is there any guidance on when or whether the customer could exercise a second tier remedy under the Consumer Rights Act 2015?
Q&As
The Consumer Rights Act 2015 (CRA 2015) lays out remedies available to consumers for breach of their statutory rights. The remedies differ for goods, services and digital content. This Q&A does not consider digital content. Remedies for non-conforming goods The statutory remedies under CRA 2015 include: • the short-term right to reject the goods (see CRA 2015, ss 20 and 22) within the first 30 days from the date of delivery (see CRA 2015, s 22(3)) • the tiered remedies, consisting of first tier remedies—right to repair or replacement, and second tier remedies—right to price reduction or final right to reject (see CRA 2015, ss 20 and 23–24) Where the goods are hired (as defined in CRA 2015, s 6), a consumer's right to the above remedies is unaffected, save to the extent that any refund entitlement extends only
Where a consumer requests a repair under section 23 of the Consumer Rights Act 2015, can the trader refuse and insist on providing a refund instead (for example, to avoid escalating repair costs, where such costs are difficult to determine before the repair is started)?
Q&As
Section 23 of the Consumer Rights Act 2015 (CRA 2015) provides a consumer with the right to request a repair or replacement of the non-conforming goods. If the consumer asks the trader to repair or replace the goods, the trader must do so within a reasonable time and without significant inconvenience to the consumer and bear any necessary costs in doing so. Generally, the consumer can choose whichever one of these
Where a contact order has been made in favour of a father, in the event that he is away and unable to see the child can he insist that another family member spends time with the child in his place? Is there any authority on this point?
Q&As
Contact is provided for via a child arrangements order (CAO) pursuant to section 8(1)(a) of the Children Act 1989, which will determine: ‘(a) with whom a child is to live, spend time or otherwise have contact…’ Thus, within the CAO, there will be a named person who is to have contact with the child. It is conceivable that the CAO could name other persons who are to have contact with the child if the father is unavailable to do so or for it to be a condition
Where a contract between an English business and a Scottish business does not contain a governing law clause, what law will apply in the event of a dispute?
Q&As
Where there is no mention of applicable law in the contract, in the event of a dispute, the court will have to consider which law will apply. To do this, it will apply the provisions in Retained Regulation (EC) 593/2008, Rome I. Article 22(1) of Retained Regulation (EC) 593/2008, Rome I sets out
Where a contract contains a most favoured nation clause that states the same daily fee will be paid for services to all parties that provide that service, if one of the parties claims VAT, is the fee payable calculated based on the fee net of VAT or inclusive of VAT?
Q&As
If a commercial contract for the supply of goods or services for consideration in money does not contain any provisions in relation to VAT, the consideration to be paid is deemed to be inclusive of VAT. Therefore, if the commercial intention is that the purchase price is to be exclusive of VAT, this should be made clear in the agreement.
Where a contract contains a termination for convenience clause but does not specify when notice is deemed served, when will notice served by post be deemed to be served?
Q&As
Statute provides for deemed service in some limited circumstances (see Practice Note: Notices—commercial contracts). In that context, section 7 of the Interpretation Act 1978 provides: ‘Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.’ In this context, proof that a letter has been posted, and that it was
Where a contract contains an express warranty period of ten years from the date of supply and there is no express restriction on when a claim must be notified, could a claimant claim at any time? What is the impact of the Limitation Act 1980 on any such claim?
Q&As
The research for this Q&A is limited to cover contractual warranties in a supply of goods contract. Claims for defective products In an absence of contractual term, an individual who has been supplied goods can claim for defects to those goods which cause personal injury or damage to property through the Consumer Protection Act 1987 (CPA 1987). Such claims are subject to specific limitation provisions as set out in section 11A of the Limitation Act 1980 (LA 1980). Under LA 1980, s 11A(4), an action for damages for personal injury or loss of or damage to property caused by a defective product is subject to a limitation period of three years from whichever is the later of: • the date on which the cause of action accrued, and • the date of
Where a contract does not require a recipient of a notice of rescission to sign or otherwise acknowledge the notice, is the notice (served in response to a failure to complete the sale of a property) still valid if it is served on someone who lacks capacity (and where there is no deputy or attorney appointed)?
Q&As
The service of a notice to terminate a property sale contract on a mentally-incapacitated person (P) who does not have an attorney or deputy appointed to represent them should be capable of taking effect. However, the consequences of doing so should be considered. These include bringing or defending proceedings arising out of the termination.
Where a contract expresses that an obligation must be performed ‘by’ a given date, how should ‘by’ be interpreted? For example: does ‘by’ mean by midnight on the day prior to the specific date or 23:59 on that specific date?
Q&As
Principles of contractual interpretation The meaning of words as used in a particular contract is determined by applying the usual principles of contractual interpretation; these principles are discussed in many authorities, including the relatively recent Supreme Court decision in Arnold v Britton. The central principle is ‘what a reasonable person having all the background information which would have been available to the parties would have understood them to be using the language in the contract to mean’—paragraph 14 of Chartbrook Ltd v Persimmon Homes Ltd. The word ‘by’ when used to refer to a date is potentially ambiguous. It follows that two contracts which both provide for something to be done ‘by’ a particular date could be interpreted differently, if the contexts are different. For example, it may appear from the contract itself that performance
Where a contract for sale of land adopts the Standard Commercial Property Conditions (2nd edition), if the contractual completion date has passed is the seller obliged to serve a notice to complete? Is there a risk of the seller impliedly accepting a late completion or otherwise waiving its right to serve a notice to complete later? Or can the seller can just sit and wait knowing it will receive compensation for delay and can serve a notice to complete when it decides it may want to rescind?
Q&As
Most contracts for sale of land will adopt standard conditions, modified as appropriate by the agreement of the parties. There are standard conditions in respect of both commercial and residential properties. The Standard Commercial Property Conditions (Second Edition) ('the Standard Conditions') came into force on 1 June 2004 and were replaced by the 3rd Edition in 2018. The provisions in respect of completion are broadly the same across these editions. See Practice Note: A review of Standard Commercial Property Conditions (Second Edition) and practical tips. The Standard Conditions
Where a contract incorporates the standard commercial property conditions (second edition) and a specific term that the sale is not subject to the existing legal charge over the property, is the buyer’s consent required to the grant of a second legal charge over the property between exchange and completion?
Q&As
Condition 3.1.1 of the Standard Commercial Property Conditions (Second Edition) (SCPC) states that the property is sold free from incumbrances other than those in condition 3.1.2. Condition 3.1.2 of the SCPC states: '3.1.2 The incumbrances subject to which the property is sold are: (a) those specified in the contract (b) those discoverable by inspection of the property before the contract (c) those the seller does not and could not reasonably know about (d) matters, other than monetary charges or incumbrances, disclosed or which would have been disclosed by the searches and enquiries which a prudent buyer would have made before entering into the contract' The notes to this clause specifies that the exclusion
Where a contract incorporates the standard conditions of sale (5th edition) without amendment, can a notice to complete be validly served on the buyer by sending it to the buyer’s solicitor by fax?
Q&As
Condition 6.8.1 of the 5th edition of the Standard Conditions of Sale: Encyclopaedia of Forms and Precedents [460] provides that: ‘At any time after the time applicable under condition 6.1.2 on completion date, a party who is ready, able and