Memorandum of Oral Pleading

Topics: Law, Tort, Damages Pages: 6 (1630 words) Published: March 19, 2013
Memorandum of Oral Pleading

Parties: Mr de Jong (Claimant) and Mini-Coza (Defendant)

Date and time: Thursday 4th October 2012, 10:00hrs

Judge: Mr. de Vries

The Group: Pasi Lindqvist, Daan Bredenbeek, Nick Bruurmijn and Redmer van Berkum

Overview of the Facts and the Compensation Sought

On the 1st of January 2011 the claimant Mr. de Jong purchased a buggie through a German provider Mini-Coza, who operated in the Netherlands for €275. The buggie was to be used by the claimant’s over-one-year-old son Daan.

According to the product description the buggie was suitable for kids aged one year onwards. The claimant used the buggie in a proper and normal manner on a paved path without any serious obstacles. Regardless of the proper use the claimant’s son (Daan) fell through the floor of the trolley, hurting his head and back, suffering from a concussion and a severe injury, a broken arm. The monetary burden of the medical costs caused by these injuries amounts to €2500. Additional costs have occurred on a rate of €1500 per month, amounting to €4500 during three months. These costs are caused by the fact that the claimant’s wife has been traumatized, thus unable to work or take of her son, resulting to the need to hire a nanny.

The council for the claimant will claim special performance in a form of a new buggie and that the abovementioned costs are compensated by awarding monetary damages.

Introductory Outline of the Pleadings

1. Unfair Commercial Practices - EU Law

According to Directive 2005/29/EC unfair commercial practices are prohibited and raise liability for compensation. The council claims that the act falls within the scope of this prohibition.

2. Contract Law, Special Performance – Dutch Private Law (BW)

Furthermore, by establishing defective performance on the part of the trader, the council claims special performance pursuant to a violation of Dutch Contract Law.

3. Tort Law, Wrongful Act – Dutch Private Law (BV)

And finally, the claimant will demand compensation for medical costs up to €2500 relying on Dutch Tort Law.

Unfair Commercial Practices – EU Law

Directives as part of the European Union legal order have vertical direct effect according to Van Gend & Loos meaning that EU law can be enforced in national courts, even by private individuals.

Therefore the council will use unfair commercial practices –directive 2005/29/EC to show that the violation suffered by the claimant is prohibited by EU law.

According to Article 1 and Article 5:1 Directive 2008/29/EC protects against unfair commercial practices, which are defined in Article 2:ab and 4:ab. Providing a buggy with usability description for one-year-olds and onwards amounts to misleading action according to Article 6:1 and Article 6:b in the present case where the description was deceptive and resulted in injuries for the claimant’s son. Clearly the product was not fit for its purpose by the information provided by the trader. Thus selling the buggy violates the prohibition of unfair commercial practices and will render the trader liable for deceptive action.

The council for the claimant would as well like to point out, that the liable party can be enforced with national consumer authorities, which are authorized to impose fines up to €450,000. Special Performance – Contract Law: Dutch Private Law (BW)

Special performance under contract law will be used to claim other than monetary compensation, in this case, a new buggy. The contract has been established at the time of purchase (money exchange) and finally at the time of receiving the buggy. Mini-Coza, the seller, can be considered as a retailer because of the engagement to economic activity, and Mr. de Jong as a natural person and as the final user of the product. Therefore the laws and regulations of consumer purchase apply.

According to Article 6:74 and Article 6:265 the defective performance will cause liability for damages or...
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