Winston and Daly Car Sales Agents

Introduction

The report has explored the legal issues involved in sale of a truck in a transaction involving Winston and Daly Car Sales agents. The report has also looked at the express and implied terms of agreement and the Sales of Goods Act. The report has also explored the application of the Sale of Goods Act to the transactions involving the two. The report has also looked at the distinction between the consumer and consumer sales in exploring the terms of sales involving Winston and Alan of Daly Cars Sales Ltd.

The report below is meant for guiding Wintson on the legal issues involved in the after sale problems related to a van purchased from a dealer. In this report, the subject to explore is the best course of action as far as issues related to the van transacted by Winston from Alan is concerned. The report is concerned with both the rights and obligation of  Daly Car Sales Ltd to Winston. The report will therefore examine the agreement with Alan Daly in regard to the specification of the van delivered to the company and the associated problem that includes oil leaks, crunch failure, and the malfunctioning brakes. The report will also be based on the standard form contracts signed between Winston and Alan on the sale of the van, a White Transit XL with 48,072 miles. The report will also highlight the clause in the agreement stating the any warranty regarding to the condition, description; quality or fitness for particular purpose is hereby excluded from this contract for sale of Truck by Alan to Winston.

The report takes into consideration the right of business to obtain the best deal they can with the public. The report also considers the protection accorded to the buyer against defective goods. The report will therefore look at the Sale of Goods Act and the Consumer Protection Act as the basis for advice to Winston against Daly Car Sales Ltd, a commercial vehicle dealer involved in sale of right trucks.

The report will take into consideration that a sale agreement has been entered between Winston and Alan and that delivery of the van is a concluded issue. As the buyer, Winston needs to explore what rights he has that can mitigate the effect of defective van systems. The vehicle sale agreement has excluded a warranty. The report will also explore whether the sale of the defective van was intentional or done in good faith. The sale agreement was therefore not obsolete but conditional.

Express and implied terms in a sales contract

The report will explore whether the terms of sale were express or implied. The express terms are hereby investigated at as the terms that the concerned parties specifically deal with and do agree upon. The provisions or the specifics are express terms, but the specific are not the contract by themselves.

The implied terms, on the other hand, are the rights and obligations that may be left unexpressed. They may also not be specified. The seller therefore has a duty not to destroy the trust and confidence with the buyer (Dabydeen, 2004: 25).

Looking at the express terms of the sale agreement, they cannot be changed without the seller agreeing to change the terms in writing. The terms expressed in the sale agreement are the basis by which the buyer can lay claim on concerning the non performance of the van. The express sale terms regarding the sale of the van did put condition that exempts the buyer from some liability, especially in relation to the performance or the non-performance of specific duties by the White Transit XL van.

The report has also explored the basic consumer rights that protect a customer from defective products. An example is the sale of goods Act of 1979 in United Kingdom that deals with rules governing the obligation and rights of parties involved in the transfer of ownership of goods. In the transfer of the White Transit XL van from Alan to Winston, a contract has occurred because the due payment has been made.

The implied terms are the basis of consumer law protection in Civil law. The section 12-15 of the 1979 Sale of Goods Act expresses the rights and obligation of the seller. The sold van ought to correspond with the implied conditions description. The buyer will therefore look at the implied suitability of the sold van in regard to quality and conformity to purpose concerned. The other implied term in the sale is the passage of ownership of risk. The seller may use the clause to imply that the van was sold to the buyer and the sale implied passage of risks.

The buyer will also need to explore whether the seller undertook a false description of the van as stipulated in the 1979 sale of Goods Act.  During the sale of the van, the buyer in this case Winston described the van that was desirable and the intended purpose. The information was enough to convey information on the goods identity. The buyer (Winston) relied on the description of the White Transit XL van to undertake the purchase. The van can be said to have failed to comply with the description. The sold van cannot be said to have been free from minor defects with the oil spillage. The seller, Alan, sold goods in cause of a business.

The matter of defective crunch and oil was not drawn to the buyer, Winston before the contract was drawn. The sellers even concealed oil spillage as arising from refill. The buyer is therefore under obligation arising from his skills and judgment that should have provided a van that suits the work described by Winston. The delivered van should therefore suit the given task for a reasonable time. The buyer, Winston will rely on Sale of Goods Act of 1979 to identify the implied terms of sale together with the ordinary contract rules. Some of the terms such as the crunch, and the brake can be said to have been too obvious that they were left behind. The buyer of the van can lay claim to problems related with the defective products (Cavendish, 2006:67).

The terms of sales can therefore be said to contain both express and implied terms upon close examination. Therefore, terms implied by the Sale of Goods Act of 2009 can be applied to identify the implied terms. In some instances, exclusion may be held invalid. The implied terms focus more on intention or good faith. The implied terms ca be categorized as terms implied by statute, terms implied by law and the terms implied by facts. In some instances implied laws can be termed as general default laws that can fill the gaps left in a contract signed on basis of express terms. The implied terms in the sale of van have to be legal for them be qualify ad mandatory. Mandatory terms in a sales agreement are therefore important to the undertaken transaction between Winston and Alan. The rules are stipulated in Section 12 of the Sales of Goods Act of 1979 and section 15 and 13 that act.

The implied terms will be useful to Winston as the buyer as they will form the basis for interpretation of the sale contract. The contractual business, once it is taken to the court should ensure that the implied terms are used together with the express contractual terms. The buyer can argue that the contract was not free from all unforeseeable contingency. The implied terms will be applied in reasonable sense. The matter will be interpreted within the reasonable contemplation of the buyer and the seller of the van. The buyer needs to look at the presumed in intention of the contract. In every contract, the buyer can explore the implied obligation on the side of the seller. This implies that the undertaken contract should make it possible for the other person to perform his obligation (Gillies, 87).

Contract as Civil Law

The litigation involving contact will be filed in civil court. Contract is in fact, a branch of civil law and not the criminal law. The contract law is therefore applied in civil courts. The parties involved intentions are important, and they are accorded consideration in an objective manner. The signed contract will be examined on the basis of whether the intention was to make it legally binding. The buyer (Winston) will have to institute legal proceedings and prove liability on the defendant (in this case Alan of Daly Car Sales Ltd. The defendant can be found to be civilly liable, depending on the stated probabilities. The parties will be seeking dispute resolution arising from sale of a malfunctional truck vehicle. The aim of the plaintiff is to get compensation for the losses arising from the sale.

The court will look at the implied law so as to give business efficacy to the agreement signed by the given parties. The plaintiff should base its case upon implied warranty. The parties should look at the presumed intention of the parties. The implied terms will therefore form the basis for the plaintiff to argue his case. This is the implied intention when both parties were signing the sale agreement. The intention of the plaintiff will be to lender the harsh contract more reasonable (Cornes & Winward, 2007: 30).

Difference between Consumer and Non-Consumer Sales

The aim here is to distinguish the difference between the consumer and non-consumer sales. One of the differences is that there is that provision for sales as only mandatory for the consumer sales. In this instant, it is important to know whether Alan presented himself as a sales agent and not as a seller. Because the purchaser intended to use the truck for trade, he will argue his case as a consumer (Howells et el, 2007: 136).

Determining whether the sale was consumer or non-consumer is important as it will guide the plaintiff in determining whether to claim for repair or replacement. In the case of non-consumer sale, it is the buyers obligation to examine the goods and accordingly notify the seller where there is lack of conformity. In consumer sale, the buyer should therefore note any lack of conformity (Hondius, 2008: 18).

The plaintiff should be aware that the contract was tailored to shelve protect the buyer. For the commercial buyers, assumption is that the loss can be absolved through other means like insurance. The plaintiff will base his argument on the protective consumer laws. The plaintiff can therefore argue his right to residing odd contract if neither repaired or replacement is possible within a convenient time.

The plaintiff can also argue his case on the basis of reasonable expectation as benchmarked in UCTA in section 3(2) (b) (1) of the Act Control Terms. This will form basis where the trader, in this case the seller of the truck will be obliged to offer contractual performance deemed as substantially different compared to reasonably. The prevailing contract should therefore be subjected to reasonableness test. The trader in this case has acted in ways that the buyer would not have reasonably expected him to behave. This is important in the circumstance that the seller has not behaved as expected. The buyer can under the prevailing contract argue that he had reasonable misunderstood the extent of obligation on the side of the seller. In the case involving the truck sale, the pre-existing expectation can be based on the circumstances surrounding the way in which the contract is presented.

The assumption it can be argued was that the seller would perform his obligation to the expectation. The plaintiff will therefore seek a possible and reasonable solution to the matter. The plaintiff can also base the argument on what usually happens when it comes to the purchase of a given commodity. The plaintiff claim will therefore be reasonable if based upon the way the delivered truck was reasonably expected to perform and also based on what normally happens. The plaintiff as the consumer had the primary expectation on the performance of the delivered truck. The plaintiff based his agreement on the presentation of goods by the buyer at the time of sale. As a consumer, the plaintiff will argue that he had expected the goods to accord with the most basic description he was offered by the seller at he time of sale. The plaintiff will argue that there was expectation that the truck from Alan as the proprietor of would successfully perform according to the description.

Conclusion

In conclusion, the pre-existing expectation cannot be said to be confined to the core aspect of a given contract. The prevailing circumstances during the time of sale should also be considered. Signals and expectation arising from this contract should form the basis for litigation. The other area of consideration is the transparency in the contract. The trader, in this case the truck seller should not have  acted in a way that is out of step with what can be referred to as reasonable expectation of the involved parties.

The verbal exchanges preceding the negotiations are important because the verb exchanges had laid down the expectation for the kind of truck expected.  The plaintiff can also base his argument on the New South Wale Motor Dealers Act that stipulates that where a vehicle breaks down before it has covered 20,000KM the dealer is under obligation to undertake repair for new vehicle and 5000KM for a section had vehicle. The dealer could have escaped responsibility if he had displayed the defects in a notice offering reasonable particularity of the vehicle. This notice must also be delivered to the purchaser. The dealer can only exempted from defects in tyres, batteries or other related accessories that may arise from misuse.