Business Unit 8 P1

A breach of sales contract occurs when the parties to the agreement fails to conform with the language of the sales contract. This is referred to as non-conformity or default with respect to one or more elements of the contract (Uniform commercial code U.C.C. - article 2 - sales, 2015).

The Fair Trading Act 1986 is the claiming of products and services given by the businesses to the potential customers before they have been bought. Also the Consumer Guarantees Act deals with the same goods and services after purchase. Both these legislation Act prohibits certain unfair practices including misleading and deceptive conduct, unsubstantiated claims, false representations and more. This certainly opens to interpretation and affects marketing in most ways as care needs to be taken to make sure that the excitement and enjoyment of attending our tour business is not overstated.

Three elements should be satisfied, for a plaintiff to be successful in the tort of passing off. Reputation or goodwill of the plaintiff is the first element and the plaintiff should be able to prove that they have gained reputation among potential customers and in the minds of customers in some sort of a trade indicia. The next element will be misrepresentation, where the plaintiff should prove that the defendant relied on the reputation of the plaintiff and tried to mislead customers in the market. Misrepresentation to affiliation, sponsorship or licencing, mere association and misappropriation are the three ways of misrepresentation in character merchandising. In other words, the customers should be confused and mislead into thinking that there is

The statutory prohibition of misleading or deceptive conduct under section 18(1) of the Australian Consumer Law provides:

Misrepresentation- is a false statement that induces a contract. 3 categories- Innocent: cancel contract. Negligent: cancel contract damages available. Fraudulent: Cancel contract damages in deceit.

In the case of Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1998) 79 ALR 83, statements about the object of sale were found to be deceptive. The court held that the defendant had a responsibility to reveal the true situation of the object of sale to the potential purchaser in the pre-contractual

There was a legally binding contract between Harriet and Super Suckers Ltd whereby there was an offer, acceptance, intention to create legal relations and there was consideration given by both parties. Harriet would pay Super Suckers Ltd £5000 and in return receive an industrial strength vacuum cleaner. However Super Suckers Ltd failed to provide Harriet with a functioning industrial strength vacuum which means there was a breach of contract. In section 14(3) of the Sales of Goods Act 1979 it states "Where the seller sells goods in the course of a business and the buyer, expressly or by implication, makes known to the seller any particular purpose for which the goods are being bought, there is an implied term that the goods supplied under the contract are reasonably fit for that

Furthermore, I purchase the armchair under trade and commerce whereby under mutual communication, and I negotiated 30minutes orally with Mandela (salesperson) to sell me the armchair with $1500. Moreover, Mandela conduct was misleading or deceptive where he stated he sits on the armchair all the time where he actually doesn’t sit on it and the fact that the chair was actually fragile. Refer to Taco Bell to determine whether the conduct is misleading or deceptive that there are certain criteria to justify whether they are mislead or deceived. First, the conduct is based on me which is justified the targeted by the conduct of the defendant. The time I was in Tyson’s shop, Mandela forms an erroneous conclusion to me, that the armchair is safe and can be used as furniture where it was not the fact. Hence, proves the conduct by Mandela skilled of being misleading or deceptive.

Once the fraud is proven under the above mentioned conditions, the contract becomes voidable and remedies include affirmation and recovery of damages, rescission and recovery of damages or the misrepresentation can be raised as a defence. Damages are assessed based on the tort of deceit – all losses following directly from the misrepresentation can be claimed for, including losses that are not reasonably

Misrepresentation refers to a circumstance where a person is induced to enter into a contract partly or entirely by untrue information made by the other party. Misrepresentation can lead to a contract to be voidable. Voidable contract means there is a valid contract whether it is written or verbal. In any voidable contracts, a party has a choice whether to rescind or to continue with the contract. However, there are certain circumstances and elements of misrepresentation that can cause a contract to be voidable. Misrepresentation can occur in a number of ways. Under Section 18 of the Contract Act 1950, misrepresentation includes:-

Under the common law, fraudulent misrepresentation is made by one party to another; the statement is made with a lack of belief in its truth; the intention of inducing the other party to enter into the contract; the statement results in damage to the innocent party.

Any breach caused on the part of the seller should first be remedied by the terms of the contract given before the parties turn to apply common law. The term further excludes the right for the buyer to reject the goods unreasonably or because of any breach or damage caused by the company as outlined in section (a) and (b). The term aims to provide a certain rout to claim damages on the part of the buyer before referring the common law or accessing the courts.

: Section 18 of the ACL prohibits a person, in trade or commerce, from engaging in misleading or deceptive conduct.

In MacLeod v Kerr a crook named Galloway posed as a third-party by using a stolen check book to purchase a car. The court insisted the contract was voidable, not void, as the error to identity was not essential because the pursuer was not concerned as to who he was selling the car to, he was only concerned about the profit. Wilma’s error to identity may not be seen as essential as I think she would have contracted with anyone. The only part Wilma’s error affected was the process of the dealing — giving the car to Septimus in advance — but she would have contracted with any person that was present and negotiating with her, whoever it may be. As a result, I think the possible misrepresentation is incidental to the contract and

This act requires being clear on the product you are selling and to provide clear information, so the customers know what they are buying and can make good informed decisions on whether the product is good and suitable for them to buy. This act also states that the buyer can cancel whatever their buying with immediate effect meaning that there is a right for the customer not too accept the product which they have bought. This act also requires a clear confirmation in writing. This is affects M&S marketing activities because it’s harder to sell their products online because they can’t persuade as much for people to buy their products.