Page 164 - DMGT102_MERCANTILE_LAWS_I

Mercantile Laws-I

Notes than social or domestic matter , capacity (both parties had to be able to enter a contractual
agreement), and the contract has to be based on a legal transaction (legality).
In the case between Susan and Paintplus there is no dispute that a contract was entered into
because she visited the shop of her own volition, discussed different paint types with the
sales assistant, and then based on the advice she had asked for and was given, purchased
both the masonry and bathroom paint. She apparently paid for the goods and took them
from the store, thereby completing the basic elements of the contract.

The case for a breach of contract in this situation relates to the Sale of Goods Act 1979 which
applies to the concept of sales made in the course of a business and where goods are sold by
a merchant that relate to the nature of the merchant’s business. In particular s14(2) makes
the distinction between goods that can be considered a private sale and those that are
made in the course of doing business. It could be considered that in one respect Susan was
purchasing the paint for a personal project, despite the nature of her occupation, because
it was for a house that she had purchased. However s14(2) relates to the sellers business,
not the buyers.
From there it is necessary to consider if the Susan was entitled to claim a breach of contract
under the Sale of Goods Act 1979 or related legislation such as the Unfair Contract Terms
Act 1977, s12. Section s12(1) states; “A party to a contract ‘deals as consumer’ in relation
to another party if (a) he neither makes the contract in the course of a business nor holds
himself out as doing so; and (b) the other party does make the contract in the course of
a business”. The case of R&B Customs Brokers v United Dominion Trust applies here
because although Susan was herself a painter and decorator she bought the goods from
Paintplus as a consumer, not as part of her business. It can be argued that this is the case
because firstly Susan was buying the goods as a consumer to do work on her own property.

Even though she may plan to rent the property out at a later stage, renting property cannot
be considered her normal occupation and therefore Susan’s future plans for the property
are negliable in this case. The second indicator of Susan’s position as a consumer stems
from her asking advice from the sales assistant at Paintplus because she herself was not
knowledgeable about paints that were suitable for masonry at a coastal area, nor interior
paints that were suitable for a wet room such as a bathroom.

MacDonald noted that there have been other cases since R&B Customs Brokers and a

precedent case Stevenson v Rogers that provide more latitude in the definition of “consumer
sales” and “in the course of a business” especially when s14(2) of the Sale of Goods Act 1979
is considered alongside s12 of the Unfair Contract Terms Act 1977. She notes that there is a
difference is phraseology that shows a subtle distinction between the phrase “in the course
of a business” and the phrase “in the course of business” and cites Kidner as holding that
the second phrase “suggests things done by and for a business”.

A final consideration in the first part of this paper concerns Susan’s inspection of the goods
while she was at the paint store. Firstly in relation to the masonry paint, Susan did read
the description of the product listed on the tin, and therefore would reasonably expect the
products she bought to adhere to the description provided. Likewise it can be assumed that
the tin’s description did include enough information about the paint’s use under different
weather conditions for Susan to have purchased the paint without further questioning of
the sales assistant. It can be argued therefore that in the case of the masonry paint, the paint
did not meet the reasonable expectations of the purchaser and therefore Susan could claim
breach of contract in connection with the masonry paint.

In the second instance, regarding the illness Susan sustained when using the bathroom
paint, initially the description of the product was not present on the can although Susan
did ask the sales assistant about any information about the paint that she should know

Contd....

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