Question 1: Advise Fiona whether Black Tie Drycleaning can escape liability for the damage to the jacket.
1) Is this under consumer or non-consumer contract?
2) Is this under contract law? Did Black Tie Drycleaning breach the contract? 3) Is there a breach of sale of sample?
4) Could she succeed in an action in negligence misrepresentation against Black Tie Drycleaning? 5) Is this unconscionability?
6) Can Fiona get remedy for the damage?
7) Is this breach of warranty?
1) SOGA (sale of goods act) goods Act 1958 (VIC)
2) Once the Black Tie Drycleaning accepted the clothes from Fiona, this becomes a legally binding contract as acceptance of the offer. 3) Section 20, to the implied terms /consumer guarantees connecting to say the good title, it has due care and sill s60. 4) At common law, the misrepresentation is a fact made by the representor to the representee before make a contract, which present the negligent misrepresentation here. Case Law: Donoghue v Stevenson; AS a company, the owner owes a duty of care.
5) Aspects of unconscionability is saying unconscionable is means the description is not match the real thing or good conscience, (Deane J in Amadio)
6) Common law as opposed to equity. When the money paid to an innocent party who suffers to breach, damage will be produced, also general speaking, damages are available as a remedy. F (Verma, 2011) 7) For the express terms, it includes warranties of goods and services, such as the written contracts that as parol evidence, as the exceptions, it show that the written contract is not binding because there is evidence of fraud ore duress. Section 16, acceptance of goods
1) In Victoria, Part I of the Goods Act 1958 (Vic) regulated contracts for sale of goods for non-consumer purposes, in that case, it include exclusion clauses. As Fiona’s receipt, just is an example of exclusion clause with reasonable notice, it still going to be an unsigned documents.
2) Fiona received one docket from the store, which written in the notice of “terms and conditions displayed on the premises.” That shows an acceptance of valid contract. But the offeree has to understand all the information about the offer, otherwise, any attempted acceptance made in ignorance of the offer will not be valid.
3) As Fiona paid the fee to Black Tie Drycleaning, the contract has been performed. In a contract, there is sale of goods by description, there is an implied term/guarantee that the goods will correspond with the description. Therefore, as the principle, the goods must be similar or same as description; otherwise, the buyer can reject it.
4) Negligent misrepresentation is saying the statement which is incorrect and untrue. To succeed in a case, the representor should know the information about the serious purpose, and knows that the representee intends to rely on this information, so The Black Tie Drycleaning, should knows the problem about their store, but they gave the docket to Fiona without any explanation, therefore, that is negligent misrepresentation.
5) In the “terms and conditions displayed on the premises” of Black Tie Drycleaning, is says the store is not liable for any damage howsoever arising, or delay, which means their action is not unconscionable. If no consideration is provided in the party, who receives the promise, no contract will exist and the promise will be unenforceable
6) In common law, equitable rights are valid only against those people who are in conscience bound to recognize them. As the other rule of damages, Fiona is liable instead of not. So in this case of damage are compensatory.
7) In a contract, if there is a breach, and the term is condition (or) warranty, then the innocent party such as Fiona will be entitled to terminate the contract from the time of the breach.