Spector Builders Ltd is a building company that builds flats and renovates houses in the Hertfordshire area. He entered into a contract with Litt Building supplies Ltd and agreed to purchase the following with the help of Lewis, a sales representative:2000 Victorian style yellow bricks50 litres of white markle house paint250 ash grey composite floor tiles measuring 15x15I am advising Harvey as to whether he has the right to claim remedies for breach of contractBricksIn relation to the 2000 bricks Harvey purchased, the issue is that only 1500 were delivered on the 6th December, as Lewis informs him that the remaining 500 will arrive a further 12 days later. This is particularly a problem for Harvey because he has a contract with a client to finish the development for the 22nd December, otherwise he is to pay £15000 under a penalty clause.
Harvey cannot reject the 1500 bricks sent to him because he has already accepted the partial delivery of the bricks and must pay the contracted price according to s.30 Sale of Goods act 1979. However, the buyer and seller agreed to the express term that all materials are to be delivered on the 6th December. The product was not as described, therefore there has been a breach of contract as the seller has failed to deliver the number of bricks stated in the contract. Similar to the case of Re Moore & Landauer, as the purchaser was entitled to reject the goods because they were not as described. Furthermore, it was held in the case of Behrend & Co v Produce Brokers & Co, that the claimant may accept partial delivery and reject the late delivery of goods, meanwhile the defendant is required to reimburse the claimant for the rejected goods.
Unless otherwise agreed, the buyer of goods is not bound to accept delivery of them by instalments, so Henry is not obliged to accept the second instalment of the bricks unless he agrees. This means that Henry is able to accept the 1500 bricks sent to him and only be liable to pay the price for the amount accepted as the there is no problem with the quality of bricks. The restricted time frame in which Henry has to complete his work is an important factor when considering late delivery. The general rule in ordinary commercial contracts is that time is prima facie of essence in respect to delivery. Therefore, Lewis cannot expect Harvey to accept the delivery of goods when he has failed to deliver all of the goods on the stipulated date, assuming that his deadline has already passed and the seller has failed to fulfil the bargain. Henry can assert that the delivery was not in accordance with the terms of the contract and Litt building Supplies ltd are in breach of s.27 SGA.
Henry can seek to claim damages for non delivery under s.51 which means that he will be reimbursed money for the bricks that were not delivered to him.PaintThe matter in question relating to the paint is whether; ordering the wrong type of paint is Lewis’ fault and if he can be compensated for it. The paint was clearly not fit for purpose as Harvey discovered through the use of the paint that it peeled away easily and it was not suitable for outdoor use. Lewis failed to supply Harvey with goods that are satisfactory under s.
14 (2B) Sale of Goods act. The goods lacked quality because it did not comply with section (2B)(b) which states that its appearance and finish is a quality that must be judged. Lewis’ sale of the white markle house paint to Harvey was a breach of contract in respect to this.The sale of the paint did not correspond with the description. In this case, the description was prescribed by Lewis, a sales representative, because he advised Harvey as to what products to purchase. According to s.13, goods are to be sold by description and there is an implied term that goods must correspond with the description.
In addition to s.14, which states certain criteria for satisfactory quality of goods, courts may also use the usability test in order to decide if the buyer could have used the goods for its purpose. This test requires the judge to consider if the reasonable buyer could have used the goods for the purposes for which the goods were commonly supplied. In the case of Henry Kendall & Sons v William Lillico & Sons, the buyer purchased some animal feed which he later discovered was not suitable for certain types of birds and many of his chicks died. Although they were not suitable for his chicks, they were of a multi-purpose nature and could be used to feed other animals such as cattle.
It was held that there was no breach under s.14 because they would only be deemed unmerchantable if they ‘were of no use for any purpose for which goods which complied with the description under which these goods were sold would be normally used’. The goods were multi-purpose and could therefore be used for one of its purposes. On one hand, it could be argued that Henry could find another use for the paint as it is not faulty in quality, plus he may be able to find use for it in his line of work. However, Henry purchased paint that he had not previously examined, through the reliance of judgment and skill from Lewis, that the goods will be of good quality as stated in s.14(2B). The goods supplied by Lewis were for a specific purpose and so that itself should make Litt Building Supplies liable for damages.
As Lewis was responsible to provide quality paint suitable for outdoor use and failed, Henry was unable to complete the deadline for his customer as a result, incurring a cost of £15000 from a penalty clause.In the case of Ashington Piggeries v Christopher Hill, the seller was liable for damages under s.14 due to the quality of the goods. Christopher Hill was a mink breeder and had some knowledge about the goods but partially relied on the seller to supply food of good quality. However when some of his mink were sick due to the food and died, he refused to pay.
Ashington Piggeries were found liable of s.14 due to the fact that it was clearly not of ‘average quality of the season’. The seller failed to ensure that the ingredient in the food was of suitable quality for the customer and is therefore not fit for purpose under s.
14. In this case, Lewis failed to check if the paint was of suitable quality for the customer and as a result is liable under s.14.For breaches of s.13 & s.14, henry can reject the goods from Lewis, repudiate the contract and recover damages for not being able to finish the work for his client due to having the wrong type of paint as well as the money he used to purchase the paint.TilesThe tiles sold to Harvey were delivered to him on the 6th December as promised. However out of the 250 tiles delivered to him, only 200 were in good condition as the remaining 50 were described as ‘chipped and cracked’ and deemed unusable.
Firstly, since some of the tiles have been delivered with defects, they are against the original description of the goods and do not correspond with it. This means that the sale of tiles are in breach of s.13 because they have not been sold by description. A claim under s.13 can only be made if the goods are being sold by description.
In the case of Harlington & Leinster v Christopher Hull Fine Art, the claimant was unable to make a claim for sale by description because they had previously had the goods inspected by experts, meaning that it was no longer by description. Secondly, it is clear that the goods are no longer of the highest quality and the decreased quality is not durable nor fit for purpose as stated in s.14. The tiles cannot be deemed safe under s.14(2B) because they are cracked. The tiles do not conform with the aspects of quality, therefore Henry has the right to make a claim.Harvey has not told the Seller that he would like to accept the goods, but rather that that he would like to reject them, meaning that he has not accepted the delivery under s.35(1) SGA.
Moreover, it was impossible for him to accept the goods under s.35(a) because he has not previously examined the goods to check if they are ‘in conformity’ with the contract according to s.35(2)(a), by which the tiles are not. Once Henry examined the tiles and has come to a conclusion about it’s conformity with the contract, he is able to send the goods back and claim a refund.Exclusion ClausesExclusion clauses can be used to exclude one of the parties from liabilities however, in this case, there is particular legislation that prevents sellers from excluding section 13, 14 & 15 from any commercial contract. s.
6 of the Unfair Contract Terms Act states that the implied terms in three sections cannot be excluded unless it satisfies the requirement of reasonableness in Schedule 2 UCTA. Litt Building Supplies will have to prove that it is reasonable.In relation to schedule 2(a) regarding bargaining power, the two parties Litt Building Supplies are a national company whereas Spector Builders Ltd only operate in the Hertfordshire area.The bargaining power could be classed as unreasonable because their status as a national company implies that they do not have any unreasonable exclusion clauses and that they will carry out their obligations.Harvey did not read the terms and was not aware of the exclusion clause. He believes that he has received a copy of the terms and conditions, so it is not possible to decide if he was aware of it or not.
however if Harvey did receive the terms and conditions, it is his fault that he did not read it but it is reasonable because it was notice given to the buyer. Harvey was not aware of the term’s existence which is unreasonable.To conclude, Harvey is able to claim damages for; non delivery of bricks, unsatisfactory quality of the paint & tiles as well as damages incurred on him for the penalty clause. if he chooses to make a claim.
He may want to keep the good quality bricks that were sent to him for future use however the goods that were not fit for purpose can be rejected.