COMMERCIAL LAW IN TEFON

QUESTION

CASE STUDY:           “ Chip Pans Up in Smoke ”

Watch the following 6 minute video and answer the questions that follow

http://www.bbc.co.uk/blogs/watchdog/2008/11/chip_pans_up_in_smoke.html

If you cannot access Flash etc this is a transcript of the film.

Watchdog has received complaints about some TefalActifry units blowing out smoke, sparks and even catching fire.

If you like chips with everything – and a lot of us do – then the Actifry ought to be just what you’re looking for. Tefal says its shallow fryer cooks food that’s low fat, is easy to clean, and they say, ‘safe’. That last claim you may want to take with a pinch of salt.

The TefalActifry costs about a £130 and in the 18 months it has been on sale, more than 50,000 have been sold in the UK.Paul Price bought four of them, one for himself, one for his parents Dave and Sandra and two for other members of his family.

To start with, they were all very happy with their Actifrys. Dave and Sandra were particularly happy because not only did it cook perfect chips, safety was key for them because they’d suffered a devastating chip pan fire in 1981.

“Sparks came out”
The fact the Actifry used so little oil meant he and his wife Sandra could enjoy their chips, without the risk of a fire. Or so they thought.

“We were there cooking some chips, and suddenly sparks all came out from the back of it, and smoke from underneath it.I just couldn’t believe it to be honest, you know, it was working OK, and then suddenly bang, it had gone.” Dave explained.

They thought perhaps it was a freak accident, but it wasn’t. Before long, their son’s Actifry went the same way and this time it wasn’t just a few sparks and a bit of smoke. It actually caught fire – in the middle of his kitchen.

Paul said: “I tried to switch it on and nothing happened, so I lifted the lid, and I noticed that the heating element at the back of the unit was going from red to white hot. And the second it went to white hot there was a flame that came out of the heating element, which then caused the plastic around it to start to catch fire. And it was just giving off a very thick black smoke. You’d expect better from a product manufactured by Tefal.”

Jeremy Patrick, another Watchdog viewer, also told us how his kitchen filled with smoke when his fryer bit the dust. “I bought it because I felt it was safer than frying chips in a pan on a stove, and yet I left it for just five or ten minutes, and it caught fire,” he says.

Product safety testing

Watchdog took a brand new Actifry to a product safety testing laboratory to find out what went wrong. With our new Actifry, the lab replicated six month’s use, in just three days and everything seemed to work fine. However, when the scientists simulated a fan failure – which they say is one of the most common faults in products like this – the Actifry should have been able to cope just fine, but within seconds it was on fire.

TÜV Product Service compliance services manager Richard Poate, who tested the Actifry for Watchdog, said: “Anything that emits that degree of smoke and fire could have potential catastrophic effects. This is a fundamental design issue that should have been detected very, very easily. All the safety standards require you to simulate failures like motor failure, fan failure, and how this got past the safety testing is really quite beyond me. In my opinion, there should be a recall.”

Tefal’sresponse
Tefal says the Actifry is revolutionary, healthy and safe. But there’s nothing revolutionary about a chip pan that can go up in smoke. It isn’t very healthy, and it certainly isn’t safe.

When Watchdog contacted Tefal it told the programme:

“Of the 55,000 TefalActifrys sold in the UK, the vast majority of products have had no problems whatsoever and customer satisfaction is very high. However, we are aware of 0.4 per cent (221 units) suffering from a faulty fan motor overheating. Most of these customers have reported their products producing smoke or sparks or seeing small flames inside the unit.”

“We accept that it may be possible for a short-lived flame to appear inside the unit should any oil residue be on the heating element casing. We reiterate that even if this did occur the product is still safe. The product will not catch fire as it is made from 20 per cent fibreglass reinforced polybutylene terephthalate (PBT) which is flame retardant.”

Tefal adds that its own product tests show that the Actifry does meet European Safety Standards.Tefal has set up a freephone number for any consumers who would like further information: 0845 148 9101

Required

As the newly appointed legal advisor, you have been asked to give your legal advice on the issues above and to advise some of the parties.  Using the IRAC system you are required to address the issues presented. You are reminded that you must refer to relevant legislation and case law in your answers and to reference sources used.

Answer all questions.  All questions carry equal marks

You are reminded that you must refer to relevant legislation and case law in your answers.

Question 1

Paul Price is clearly concerned about the TefalActifry. Explain to Paul Price about his rights regarding the Sale of Goods Act 1979 (amended). In your answer you are required to refer to the relevant sections of the Sale of Goods Act (SOGA) and relevant case law.  Assuming the shop where the purchase was made had included an exclusion clause limiting liability briefly explain whether the company could rely on this clause.

Question 2

Dave and Sandra (Paul’s parents) suffered burns and a lung infection from smoke inhalation. As a result Sandra a keen gardener has not been able to work in her garden and Dave has not been at work for over a month. The kitchen will also need to be re-decorated. Paul and his parents are convinced that their condition was caused by the faulty Actifry chip fryer.

Explain to Dave and Sandra the relevant principles of tort law; advise them on the course of action that could be taken, and whether Tefal has any liability for negligence in relation to them.

Question 3

With regard to the law of contract, advise Paul whether there was a legally binding contract between him and the shop which sold him the chip fryers, and if so, when the contract became binding and why. You must refer to relevant cases to s

1. The goods which are sold to the customers with, the any kind of warranty, these warranties serves as stipulation collateral to the contract and breach of which will attract actions against the seller of the goods. Matter of faulty goods are also covered under the excellent piece of legislation i.e. Sale of Goods Act 1979. The immediate action for any kind of faulty good being sold by the seller is paying back the money. Here in this situation, Paul used the Actifryer for few days and then after it catches fire. Sale of Goods Act 1979 makes it possible for consumer to get the refund up to 6 months from purchase of the faulty good. Hence Paul can file a money back application to Tefal for their faulty product. Also the onus for proving lies on the retailer to prove through demonstration that there product was not faulty. A good must last for a ‘reasonable period of time’. It has been made possible by the Sale of Goods act 1979 that a consumer can claim his rights up to six years from the date of purchase. [Ghaffar Asa, 2008] Hence Paul can any time claim his legal rights of getting refunded as he has purchased actifryers recently. As per section 13 of SOGA 1979, if the goods are sold as per description, must be according to it. If at any time buyer feels that the goods are not according to it can presume the breach of contract. It was clearly mentioned in the case of Harlington & Leinster Enterprises v Christopher hull fine Art.  Also in Re Moore & Landauer, the buyer was held entitled to reject the goods as they were not according to the description. [Consumer action Group, 2007] It’s the duty of the seller that the goods sold must be of satisfactory quality under section 14 of the Act. For this the satisfactory test has been laid down by Act. The goods should not be such to lower the expectations of the buyer. (Bernstain v Pamson Motors Pvt. Ltd) So Paul has the legal right now only to get his money back but also any kind of damage which law allows him for his loss.
2. Dave and Sandra are the parents of Paul who purchased the Teflan’s Actifryer. Sandra and Dave were also using actifryer given by Paul. Both sufferd gross injuries due to the fault of the product manufactured by Tefal. Sandra and Dave are entitled for the damages under general Tort Law. They have the potential remedy in misrepresentation as held in Baxter v Ford motors, that the consumers should have the cause of action as strict liability and there is no need to show the negligence against the seller who represented that his goods are of such qualities and it is in fact with no such quality. [Sacht A. Robert, 2004] And the customer suffers damages because of it. Hence Sandra and Dave are entitled to claim compensation for their losses. [Diamon John L., 2006]

Tefal as a manufacturer of the product has to bear the liability under products liability. Product liability is that area of law of Tort where the manufacturers, suppliers, retailers, and other who are involved in providing the product to the customer are responsible for any injury caused by those products as held in Mac Pherson v Buick motors.

Tefon as the retailer of the product, which is to be used by other  and should be made with care so that it may not harm others, not carefully made and injure the consumer, is under the duty to carefully make the product. The maker is supposed to be expert in this area; hence he is under the duty to make it in such a manner that it must not harm the users. (United States v Carroll Towing Co. ) and (Conwoy v O’ Brien). TefanActifry should be held negligent for their act of not making or testing the product to its mark and is under the burden to take precautionary measures.

1. A contract is legally binding agreement between the parties exchanging promises. [Zarrokh Ahsan, ]  Things which are needed for a valid contract are parties, object, Concent and Consideration. Paul bought the actifryer from the shop which was displaying actifryers as the product with certain qualities. In legal contractual sense the shop was offering the whole world to treat or the shop was offering the customer to make offers for buying the product. (Carlill v Carbolic smoke Co.) Invitation to treat was also described in Harvey v Fasey. This offer was accepted by Paul with an intention to create legal relationship.  About intention, it has been remarked by English court in Smith v Hughes that parties’ intentions are not the real thing but how a reasonable man sees the situation. This is to look into the common sense that any party would never wish to breach his side of contract. Another thing which is essential to create contractual relationships is the consideration. [Steinberger Jeffery, 2007] Here, Paul agreed to pay the price of the product as consideration and took the actifryers. When Paul agrees to pay the agreed price for the actifryers he entered into contract with the shop and it bound them to perform their part of contract. For Paul to may the consideration and for shop selling the Actifryer to deliver it as described. After paying the consideration for it the contract between Paul and the shop came into existence. The contract is become legally binding as Paul agreed on the representation made by the shop selling chip fryer. The agreement between them constitutes all the essential points of a valid contract. The shop was bound by the terms of the contract and can be held responsible for the fault of the product as he misrepresented the qualities of the product. In Gardon v Silico, it was held by the court that misrepresentation may be of words or conduct, there is no need of saying or doing anything.

References

1. Asa Ghaffar, ‘Consumers right-Faulty and Damaged goods’, [2004], viewed on 9^th May 2012 from http://a-ghaffar.suite101.com/getting-a-refund-faulty-goods-and-damaged-good-a86218
2. Consumer Action Group, ‘Sale of Goods: basic rights and obligations’, [2007], Viewed on 9^th May 2012 from http://www.consumeractiongroup.co.uk/forum/showthread.php?117106-Sale-of-Goods-basic-guide-to-rights-and-obligations
3. Robert A. Sacht, ‘Product liability reform and seller liability: A proposal for change’, [2004], Baylor Law review, Vol:55.
4. John L. Diamond, ‘Products Liability’, Understanding Tort Law, Chapter 17, [2006], viewed on 9^th May 2012 from http://www.lexisnexis.com/lawschool/study/outlines/html/torts/torts17.htm
5. Ehsan Zarrokh, ‘Practical Concept of Contract Law’, [2007], Viewed on 9^th May 2012 From http://mpra.ub.uni-muenchen.de/10077/1/Practical-concepts-in-Contract-Law.pdf
6.  Jeffery Steinberger, ‘Is This Contract Valid?’, Entrepreneur,  [2007], viewed on 9^th May 2012 from http://www.entrepreneur.com/article/175238

Case Laws:

1. Harlington & Lainster enterprises v Christopher Hull Fine Art [1991]QB 564
2. Re Moore & Landaeur [1921]2KB 519
3. Bernsteain v Pamson Motors Ltd [1987] 2All ER 220
4. Mac person v Buick Motor co. 111N.E.1050 (NY 1926)
5. United States v Carroll Towing Co. 159 E 2d 169 173 (2d Cir 1947)
6. Conway v O’Brien 111 F. 2d 611, 612 (2d Cir.1940)
7. Carlill v Carbollic Smoke co.
8. Harvey v Facey
9. Smith v Hughes (1871) LR 6 QB 597

 L071

But you can order it from our service and receive complete high-quality custom paper.  Our service offers Law  essay sample that was written by professional writer. If you like one, you have an opportunity to buy a similar paper. Any of the academic papers will be written from scratch, according to all customers’ specifications, expectations and highest standards.”

upport your advice.